Lee (Migration)

[2019] AATA 325

Lee (Migration) [2019] AATA 325 (11 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ming Soon Lee

VISA APPLICANTS:  Mr Ming Soon Lee
Ms EE YOKE TAN

CASE NUMBER:  1707273

HOME AFFAIRS REFERENCE(S):           BCC2017/685652

MEMBERS:Bridget Cullen (Presiding)

Roger Maguire

DATE:11 February 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 11 February 2019 at 2:55pm

CATCHWORDS

MIGRATION – Student (Temporary)(Class TU) – Subclass 500 (Student) – genuine temporary entrant criteria – no course enrolment – secondary applicant does not meet requirements – 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 27 March 2017 to refuse to grant the visa applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 20 February 2017. 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 primary applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not meet the genuine temporary entrant criterion.

4. The applicant appeared before the Tribunal on 7 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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.

7. Although the departmental delegate made a decision on the basis of the applicant not needing clause 500.212, the Tribunal's decision is based on the applicant not meeting clause 500.211, that is, the applicant is not enrolled in a course of study.

   Enrolment requirement

8. Clause 500.211 requires as follows:

   One of the following applies:

   (a)     the applicant is enrolled in a course of study;

   (b)     if the application is made in Australia – the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s post graduate thesis;

   (c)     if the applicant is a Foreign Affairs student – the applicant has the support of the Foreign Minister for the grant of the visa.

   Is the applicant enrolled in a course of study?

9. The Tribunal, at the commencement of the hearing, provided the applicant with a copy of his PRISMS record history, obtained by the tribunal from the Provider Registration and International Student Management System.  That information indicated that the applicant is not currently enrolled in a course.

10. The Tribunal confirmed with the applicant that he understood the consequences of the Tribunal relying on the PRISMS information, as well as its relevance to the review application.  The applicant explained that he did, and the applicant confirmed with the Tribunal that he did not require further time to respond, and was prepared to respond at the time of hearing. 

11. The applicant, at hearing, confirmed to the Tribunal that he was not currently enrolled in a course of study, as such, the applicant also confirmed that he did not have a current Certificate of Enrolment. In these circumstances, there is no need to consider whether the applicant is a genuine temporary entrant for the purposes of cl.500.212.

12. On the basis of the above, the Tribunal is not satisfied that the primary applicant is enrolled in a course of study, and therefore does not meet the requirements of cl.500.211(a).

13. As the primary applicant does not meet cl.500.211(a), the secondary applicant does not meet cl.500.311.

14. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicants do not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Bridget Cullen
    Member

    
    

    Roger Maguire
    Member