KIM (Migration)

[2019] AATA 2257

KIM (Migration) [2019] AATA 2257 (7 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms BIPCHORONG KIM

CASE NUMBER:  1719243

DIBP REFERENCE(S):  BCC2017/2098410

MEMBER:Stephen Conwell

DATE AND TIME OF

ORAL DECISION AND REASONS:          7 March 2019 at 12:17 pm (VIC time)

DATE OF WRITTEN RECORD:                1 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 August 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 7 March 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in file number 1719243.  The applicant is Ms Bipchorong Kim.   Ms Kim applied for her visa on 14 June 2017 and by decision dated 7 August 2017 that application was refused by a delegate of the Department of Immigration and Border Protection.  Ms Kim applied for the visa to undertake study in Australia and in her sworn evidence she confirmed that she does not claim to meet the criteria for a Student Guardian visa.  Ms Kim’s visa application was refused because the delegate was not satisfied that Ms Kim is a genuine temporary entrant in Australia.

4. Ms Kim appeared before the Tribunal today to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Korean and English languages.  What was in issue before the delegate was whether Mr Kim was a genuine temporary entrant.  The issue before the Tribunal is now whether at the time of decision Ms Kim meets the enrolment requirements for a Student visa.

5. In her completed Section 359(2) questionnaire Ms Kim confirmed that she does not hold enrolment currently in a registered course of study.  Further, that she was last enrolled in a registered course when she completed the Advanced Diploma of Community Sector Management in October 2018.  Ms Kim’s s worn evidence today confirmed this information which appeared in her completed questionnaire.

6. The Tribunal explained to Ms Kim that the critical issue which was before the delegate who refused her Student visa had changed to a different critical issue before the Tribunal at today’s hearing.  Specifically the Tribunal explained that the critical issue before the delegate was whether Ms Kim was a genuine temporary entrant.  On the other hand, the critical issue before the Tribunal at today’s hearing is whether Ms Kim satisfies the enrolment requirements for a Student visa.  Ms Kim confirmed that she understood that the critical issue had changed from the point from the time of decision of her Student visa application to a different critical issue which was before the Tribunal at today’s hearing.

7. The criteria for a Subclass 500 visa are set out in Part 500 of Schedule 2 to the Regulations.  The primary criteria in Clause 500.211 to Clause 500.218 must be satisfied by at least one applicant.  Other members of a family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. 

8. INTERPRETER:  Do you want me to do the - - -

9. MEMBER:  Just tell it as I interpret - as I tell you to interpret.

10. INTERPRETER:  Yes.

11. MEMBER:  The issue in the present case is whether the applicant is enrolled in a course of study as required for the grant of a Student visa.  Clause 500.211 relatively requires that at the time of decision that the applicant be enrolled in a course of study.  Course of study is relevantly defined in clause 500.111 of the Regulations as a full-time registered course.  Registered course is defined as a course of education or training provided by an institution, body, or person that is registered under the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

12. On 15 February 2019 the applicant was invited to attend today’s hearing via her registered migration agent.  That invitation requested the applicant provide evidence of enrolment in a registered course of study at least seven days before today’s hearing.  At today’s hearing the applicant was again requested to provide evidence of current enrolment in a registered course.

13. In her responses in the section 359(2) questionnaire the applicant stated that she is not currently enrolled in a registered course, and that she was last enrolled in October 2018 when she completed the Advanced Diploma of Community Sector of Management.  This information was confirmed by the applicant’s sworn evidence today.

14. Accordingly, there is no evidence before the Tribunal that the applicant is currently enrolled in a registered course of study.  Therefore the Tribunal is not satisfied that at the time of decision the applicant is enrolled in a course of study, and accordingly clause 500.211 is not met.  Given the above findings, the Tribunal is satisfied that the criteria for the grant of a subclass 500 (Student visa) are not met

15. For these reasons the Tribunal concludes that the decision under review should be affirmed.  The Tribunal therefore affirms the decision not to grant the applicant a Student temporary class TU visa.  This decision is made at 12.17 on 7 March 2019.  Ms Kim, you will be provided with a copy of that decision via email.  The hearing is now concluded.  You are free to leave.  Thank you for your attendance.  Thank you.

    DECISION

16. The Tribunal affirms the decision under review.

    Stephen Conwell
    Member