HUI (Migration)

[2020] AATA 1092

HUI (Migration) [2020] AATA 1092 (23 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ng Weng HUI
Mrs LIE AI NA

CASE NUMBER:  1829608

HOME AFFAIRS REFERENCE(S):          BCC2018/2985317

MEMBER:Wendy Banfield

DATE:23 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 23 March 2020 at 11:54am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant failed to provide requested information – no entitlement to a hearing–genuine temporary entrant criterion not met –no current confirmation of enrolment–decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.12, Schedule 2, cls 500.211, 500.212
Education Services for Overseas Students Act 2000

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 September 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 8 August 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.212.500 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because it was determined the genuine temporary entrant criteria had not been met.

4. The applicants appeared before the Tribunal on 17 March 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is enrolled in a registered course of study as required for the grant of a Student visa.

7. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

8. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

9. On 17 February the applicant was invited to attend a hearing scheduled for 17 March 2020. The invitation asked the applicant to provide a copy of a current Confirmation of Enrolment (CoE) or other documents that show he is currently enrolled in a course of study as defined in cl.500.211(a) of the Migration Regulations 1994. The applicant was advised that a CoE is required for the grant of a student visa. The applicant did not submit a CoE as requested.

10. At the Tribunal hearing on 17 March 2020 the applicant was advised that in order to be eligible for a student visa, he must be enrolled in an approved course of study at the time of decision. The applicant did not provide evidence of enrolment or other documents that demonstrate his enrolment in an approved course of study. The applicant stated he had come to Australia to improve his English but after his visa was refused, he had been waiting for a decision from the Tribunal. The applicant claimed he still wants to study and has plans to open a restaurant in his home country. He confirmed he had previously owned an automotive business in Indonesia but said he now wished to learn about Western food. When asked why he had travelled to Australia on a Visitor visa, the applicant did not directly answer but said he had first come to Australia in 2005 for a motorcycle tour then returned in 2013 for business development purposes. While in Australia the applicant said he has been involved in online currency trading. He stated his belief that he would have been refused a Student visa due to his age if he had applied from his home country. The applicant did not indicate any clear plans for returning to Indonesia but indicated he would leave Australia after he finished studying, possibly in two years if that was how long his course was.

11. The Tribunal has considered the evidence in this case and although the applicant has provided some reasons for his situation, enrolment in a course of study is a mandatory requirement for the grant of a student visa and the Tribunal does not have discretion in this regard. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

12. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    Member of Family Unit – Secondary visa applicant

13. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria. Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

14. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the secondary applicant is unable to meet the criteria because they are not a member of the family unit of a person who satisfies the primary criteria in cl.500.211.

    DECISION

15. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Wendy Banfield
    Member