JACKIE (Migration)

[2018] AATA 3874

JACKIE (Migration) [2018] AATA 3874 (7 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jackie JACKIE

CASE NUMBER:  1702889

DIBP REFERENCE(S):  BCC2016/3942708

MEMBER:Jennifer Cripps Watts

DATE:7 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 07 August 2018 at 9:49am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – offer letter – fees unpaid – no evidence of enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2 cls 500.111, 500.211, 500.212

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 Immigration on 3 February 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 November 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). 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 visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant is a genuine applicant for entry and stay as a student.

4. The visa that is the subject of this review was refused on 3 February 2017.  The applicant applied for review by this Tribunal on 20 February 2017, within time, and provided the Tribunal with a copy of the Department’s decision to refuse his student visa.  The applicant’s matter was constituted to this member and, on 1 March 2018, the Tribunal sent the applicant a written invitation to attend his hearing scheduled on 27 March 2018.    

5. The invitation to the hearing also included information relating to what types of evidence and statements the applicant should consider providing to the Tribunal before his hearing, specifically addressing the issue of whether he “...is a genuine applicant for entry and stay as a student by referring to Direction No.69.”  The Tribunal attached a copy of an extract from the Migration Act 1958, Direction Number 69 – Assessing the Genuine Temporary Entrant criterion for Student Visa and Student Guardian Visa Applications to the invitation, for his ease of reference.  The applicant was informed in the cover letter to the hearing invitation that he should refer to the delegate’s written decision and the reasons why he did not meet the criteria for the grant of the student visa.

6. The applicant was informed he should provide a copy of his current Confirmation of Enrolment (COE).  The applicant responded to the hearing invitation, indicating he would attend the hearing.  The applicant provided the Tribunal with some documentary information in support of his application prior to the hearing.  An SMS hearing reminder was sent to the applicant’s mobile on 20 March 2018.  Delivery of the SMS hearing reminder failed.

7. The applicant appeared before the Tribunal on 27 March 2018 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

8. The applicant was assisted in relation to the review by his registered migration agent, Mr Leng How Phan, Migration Agent Registration Number 1570372.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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. All criteria must be satisfied at the time a decision is made on the application. The issue in the present case is whether the applicant meets all the criteria for the grant of a cl.500.2 student visa.

    Enrolment (cl.500.211)

11. 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.

12. ‘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.

13. The applicant was informed that he needed to provide evidence of enrolment in a course of study because he needs to be enrolled to be granted a student visa.  He was informed of this in the written hearing invitation and also at the beginning of the hearing.  The Tribunal is satisfied that the applicant understood this.

14. Whether an applicant is enrolled in a course of study is a question of fact that does not require any particular form of evidence.  A current COE would usually suffice.  The applicant did not provide a COE, but did provide a document entitled “Offer Letter” relating to an enrolment in a Diploma of Hospitality Management, dated 16 March 2018.  The course commenced on 9 April 2018.

15. Unlike the visa application requirement relating to the provision of a COE, the requirement in cl.500.211 makes no reference specifically to a COE.  What is required, in the Tribunal’s view, is that the Tribunal is satisfied the applicant is enrolled in a course of study. The applicant may satisfy this requirement in the absence of a COE, provided there is other evidence of enrolment.  The question in this matter is whether, by providing a copy of an offer of enrolment, the applicant has provided evidence of enrolment that satisfies the Tribunal that he is enrolled in a full time registered course.

16. The applicant provided the Tribunal with a copy of an Offer Letter (the Offer), dated 16 March 2018, from the Hannay International College, that he confirmed was issued two weeks before the hearing.  On the declaration page, the Offer bears his signature.  The Offer is for a Diploma of Hospitality Management from 9 April 2018 to 13 November 2020.  It is stated in the letter that:

    “The letter of offer is issued provisionally only; it is subject to satisfactory completion of all government visa formalities, observance of all Institute regulations and payment of fees …”

17. The fees and charges are then detailed in the offer letter as an enrolment fee of $200, a total tuition fee of $12,000, a pre-paid tuition fee (first instalment) of $1,500 and a materials fee of $200.  It is noted in the offer of enrolment that $1,900 is due.  On examination of the fees schedule, this appears to be the total of the enrolment fee ($200), pre-paid tuition fee ($1,500) and materials fee ($200).  The applicant was asked whether he has paid the fees, given that the course was due to commence within two weeks after the hearing and said that he had not yet paid them.  It is acknowledged by the Tribunal that the fees were not due, according to the document, until 9 April 2018.

18. The applicant attended the Tribunal hearing on 27 March 2018 and at that time had an offer of enrolment that he had signed and accepted. 

19. The member had been constituted a high number of student visa refusals in the first half of 2018.  As a result, a substantial number of decisions were not made as quickly as would usually be the case.  The applicant’s was one of them.  Because the hearing had been in late March and some time had elapsed up to the time the Tribunal was in a position to make a decision, the applicant was invited to provide any other or additional information he wished to be considered before a decision was made.  A letter was sent to him on 16 July 2018.

20. On 17 July 2018, the Tribunal received the following documents:

    a.Ownership title for land in the Riau Islands District indicating the joint owners of the land purchased in 2009 to be Steven, Jeksen and Jeckie.

    b.Final Year Academic Transcript 2008-2009 for Jackie, born 199 (sic)

    c.Statement addressing the Genuine Temporary Entrant criteria

21. Since the applicant was invited, on 16 July 2018, to provide additional information in support of his review application, no further information has been received other than the documents noted above.  The Tribunal has considered this additional information together with all other relevant facts and matters.

22. In the GTE statement, the applicant says that he decided to enrol in the Hospitality Management Course at Hannay International College.  It is accepted he was offered enrolment and that he accepted the offer.  The review is for the refusal of a student visa.  It is reasonable for the Tribunal to think that the applicant would provide convincing evidence that he is enrolled in a course of study, with Hannay International College or another education provide, if he had it, having been put on notice that he needed to be enrolled in a course of study to be granted a student visa.  The applicant has not provided any documents or information that satisfies the Tribunal that he is currently enrolled in a course of study, at the time of this decision. 

23. An applicant for a subclass 500 student visa must satisfy all the criteria for the grant of the visa at the time a decision is made on the application.  On the evidence, the Tribunal is not satisfied that at the time of this decision the applicant is enrolled in a course of study.  Accordingly, he does not meet criterion 500.211. 

24. 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.

    DECISION

25. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Jennifer Cripps Watts
    Member