Jeon (Migration)

[2018] AATA 3245

Jeon (Migration) [2018] AATA 3245 (15 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Hyewon Jeon
Mr Luiz Antonio Da Silva Nardi
Mr Lucas Jeon Nardi

CASE NUMBER:  1709850

HOME AFFAIRS REFERENCE(S):           BCC2016/3333373

MEMBER:Gabrielle Cullen

DATE:15 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 August 2018 at 2:38pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Course enrolment – Genuine student – Completed course – No plans to study in the short term – Currently working – Applied for a Subclass 109 visa – Decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
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 and Border Protection on 18 April 2017 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 7 October 2016. 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 decided to refuse to grant the visa on 18 April 2017. The delegate decided to refuse to grant the visas because the first named applicant (the applicant) did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that she is not a genuine applicant for entry and stay as a student.

4. On 8 May 2017 the applicant lodged an appeal to the Tribunal.

5. On 11 July 2018 the Tribunal wrote to the applicants and invited them to attend a hearing on 15 August 2018. The letter, among other matters, requested the applicant provide a current Confirmation of Enrolment (COE) or other documents that show she is currently enrolled in a course of study as defined in cl.500.211. It noted that this is required for the grant of a student visa. The letter also indicated that the Tribunal will assess whether she intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked her to provide a written statement addressing this issue by referring to Direction 69, which was attached.

6. The applicant appeared before the Tribunal on 15 August 2018 to give evidence and present arguments. The Tribunal raised with the applicant that the matter before it is whether she meets the enrolment criteria as required by cl.500.211 required for the grant of a student visa. The applicant advised that she had successfully completed the Bachelor of Nursing course she was enrolled in and was the COE she submitted with the application. While she had an intention to study in the future she advised that this was not in the short term. She said she had applied for a subclass 109 visa and wished to become a family and childhood nurse. She said she was currently working as a nurse.

7. She resubmitted documents submitted to the Department as to the reasons for undertaking the Bachelor of Nursing. She provided documents showing she successfully completed the Bachelor of Nursing at the end of 2017. She provided evidence in respect of a Certificate of Registration that she is a Registered Nurse and evidence of currently working as a nurse.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

10. 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.

11. ‘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.

12. The evidence from the applicant indicates that she is not currently enrolled in a course of study having successfully completed the course she was enrolled in to which this application relates in December 2017. No current CoE was submitted to the Tribunal as requested in her letter. She said she was not enrolled in a course of study or studying and it was not her intention to study in the short term.

13. The Tribunal found the applicant to be a genuine and credible witness who has completed her recent study. It finds she was a genuine student having completed her course and currently working in the area, but that her study has now finished.

14. On the evidence before it, 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.

15. 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

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

    Gabrielle Cullen
    Member