Lama (Migration)

[2019] AATA 3803

Lama (Migration) [2019] AATA 3803 (7 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sarita Lama
Mr Prakrit Shrestha

CASE NUMBER:  1714598

HOME AFFAIRS REFERENCE(S):           BCC2016/4418257

MEMBER:Peter Haag

DATE:07 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 07 February 2019 at 1:39pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – no current COE – no evidence provided – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 500.211, 500.212, 500.311

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 26 June 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 31 December 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 in this case refused to grant the visas 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 intends genuinely to stay in Australia temporarily. Consequent upon the delegate finding the applicant Ms Sarita Lama does not meet cl.500.212 the delegate also found dependant applicant, Prakrit Shrestha, does not meet cl.500.311.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 currently enrolled in a registered course of study.

6. 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.

7. ‘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.

8. On Monday 3 December 2018 at 15:55 the Tribunal sent to the applicant a written request for information about the course(s) of study the applicant is undertaking in Australia as a student. The applicant did not respond to that request.

9. According to the record of the delegate’s decision (a copy of which was provided to the Tribunal by the applicant with the application for review) the applicant’s last valid enrolment in a course of study in Australia, the Bachelor of Professional Accounting, was cancelled on 21/04/2016.

10. Despite the applicant being specifically requested by the Tribunal to provide information, the application has not provided a current CoE. There is no evidence before the Tribunal that the applicant is at the time of this decision enrolled in a registered course of study. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a registered course of study and accordingly the requirements of cl.500.211 are not met by the applicant.

11. 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.

12. The Tribunal found that the applicant Sarita Lama has not satisfied the requirements of cl.500.211: consequently, the Tribunal finds that the dependant applicant for the grant of a student visa, Prakrit SHRESTHA, is not a member of the family unit of a person (in this case the applicant) who holds a student visa at the time of this decision. Consequently, the Tribunal finds the dependant applicant, Prakrit SHERSTHA, has not satisfied the requirements of cl. 500.311 for the grant of a student visa.

    DECISION

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

    Peter Haag
    Member