Lama (Migration)

[2018] AATA 4775

Lama (Migration) [2018] AATA 4775 (17 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Pasang Lama

CASE NUMBER:  1702381

HOME AFFAIRS REFERENCE(S):           BCC2016/4135535

MEMBER:Wendy Banfield

DATE:17 October 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 17 October 2018 at 10:59am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – enrolment in a registered course – no condition of enrolment – decision affirmed

PRACTICE AND PROCEDURE – extension of time request – no valid reason

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 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 1 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 7 December 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 cl500.212 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 applicant appeared before the Tribunal on 16 March 2018 to give evidence and present arguments.

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 an approved 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. During the Tribunal hearing, the applicant stated she had an offer letter to enrol in a Bachelor of Accounting. After the hearing she submitted a COE for a Bachelor of Professional Accounting at Holmes Institute commencing on 12 March 2018 and ending on 31 December 2020. Prior to the decision being made in this case, the Tribunal had information to indicate the applicant’s enrolment was cancelled.

10. On 2 October 2018 the Tribunal wrote to the applicant inviting her to comment or respond to information. The particulars of the information were that according to the Provider Registration and International Student Management System (PRISMS) records, the applicant is not currently enrolled in a course of study. PRISMS records show that her enrolment in a Bachelor of Professional Accounting has been cancelled for cessation of studies and there is no evidence before the Tribunal that demonstrates enrolment to study.

11. The applicant was advised that the information is relevant to the review because the Migration Regulations state that at the time of decision, to be eligible for the grant of a student visa an applicant must be enrolled in a full-time registered course of study. She was further advised that if the Tribunal relies on this information in making a decision, it may lead to the decision under review being affirmed.

12. On 15 October 2018, the day before the applicant was required to comment on the information put to her, a request for additional time was received. The applicant stated: “I would like an extension for 5 days until 20th of October to provide you with my current COE as I have been sick and unable to go to college to pick it up. Will appreciate your understanding in this matter”. No evidence of illness was provided with the request.

13. The Tribunal considered the applicant’s request for an extension of time but did not grant the request. The applicant was advised that if she was enrolled as she claimed, she could have asked her education provider to post or email her a copy of her COE. The Tribunal did not accept the applicant had been unable to obtain evidence of her enrolment. In addition, she did not respond to the information that was put to her about the PRISMS record that indicates she is not enrolled in a course of study. 

14. 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.

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 applicant a Student (Temporary) (Class TU) visa.

    Wendy Banfield
    Member