Lee (Migration)

[2020] AATA 2402

Lee (Migration) [2020] AATA 2402 (15 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaeyoung Lee

CASE NUMBER:  1907467

HOME AFFAIRS REFERENCE(S):          BCC2018/6232372

MEMBER:Michael Judd

DATE:15 June 2020

PLACE OF DECISION:  Perth

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

Statement made on 15 June 2020 at 11:54am

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

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359A, 360(2)(b), (3)
Migration Regulations 1994 (Cth), Schedule 2, cll 500.211(a), 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 Home Affairs on 13 March 2019 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 17 January 2019. 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 she was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

   Enrolment (cl.500.211)

5. 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.

6. ‘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.

7. On 15 April 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information to satisfy it that the applicant meets the essential requirements of being enrolled in a registered course of study, and, to be a genuine applicant for entry and stay as a student. The invitation advised that, if the information was not provided in writing by 29 April 2020 the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. In their response of 26 April 2020 the review applicant indicated that he consented to the Tribunal deciding the application without a hearing. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal at time of decision.

9. In the response the review applicant indicated that he had first arrived into Australia on 31 January 2017 upon a working holiday visa which ceased in January 2018. He had then stayed for a further 12 months upon a second working holiday visa from June 2018. Between February and October 2019, he had completed a Certificate IV course in Christian Ministry and Theology at the Australian College of Christian Studies. No evidence was presented as to subsequent enrolments following completion of this course.

10. On 20 May 2020 the Tribunal wrote to the applicant pursuant to section 359(A) of the Act to invite him to comment on a respond to certain information which the Tribunal considers would, subject to his comments or response, be the reason or part of the reason, for affirming the decision under review. The particulars of the information were that recent checks of the Provider Registration and International Student Management System (PRISMS) indicated he did not hold a current Confirmation of Enrolment (CoE). The letter advised that if the applicant is not enrolled at time of decision he would not meet the criterion in clause 500.211 and that if this finding was made the Tribunal may conclude he is not entitled to be granted the visa. The timeframe provided to give comments or a response was by 3 June 2020.

11. On 1 June 2020 a written response to the above letter was received through the applicant’s registered migration agent and it has been considered in arriving at this decision. In his response he indicated as follows:

    Dear Sir or Madame whom may concern this review. Thank you for your dedication to this review. I will comment upon your request. According to the COE I submitted, my study ended on October 31^st 2019. I finished my studies successfully, but I was waiting for the result because the review results were not released until the course was over. Meanwhile, Covid 19 issue burst and I can't go back to Korea because all flights canceled at the moment. I am waiting for good results on visa application for my study last year. It was a necessary study for me, and I finished the course faithfully without any failure (with a reference to it). I have no plan to study again in Australia yet, but I just want to go back to Korea with good results on my last visa application.

12. Relevantly to this decision, at time of this decision the applicant is yet to provide any evidence in the form of a CoE or other acceptable evidence that he is currently enrolled in a registered course of study in Australia.

13. The Tribunal does not consider the above response satisfactorily explains why the applicant is presently not enrolled. As outline above, on 15 April 2020 and 20 May 2020 the Tribunal wrote to the applicant. The Tribunal considers a combined effect of the two letters was the identification to the applicant that confirmation of current enrolment was a ‘live’ issue for determination by the Tribunal. Whilst the application was refused on the basis of the applicant being considered not to be a genuine temporary entrant, the determinative issue has changed for the purposes of this review of the refusal decision, the primary ‘live’ issue for the Tribunal being whether the applicant satisfies the core requirement of clause 500.211 that at the time of this decision the applicant is enrolled in a course of study – cl.500.211(a). The Tribunal considers that clear notice has been given by the Tribunal that satisfaction as to enrolment is a determinative issue that must be satisfied.

14. 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.

    Michael Judd
    Member