Lei (Migration)

[2017] AATA 2914

Lei (Migration) [2017] AATA 2914 (30 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xuewei Lei

CASE NUMBER:  1615662

DIBP REFERENCE(S):  BCC2016/2276362

MEMBER:Wendy Banfield

DATE:30 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 30 November 2017 at 9:57pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine student – Enrolment in a registered course – Payments to migration agent – Current Certificate of Enrolment

LEGISLATION

Education Services for Overseas Students Act 2000 Division 3 Part 2

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 cls 500.111, 500.211, 500.212; r 1.03

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 on 16 September 2016 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 6 July 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 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 it was determined the applicant was not a genuine applicant for entry and stay as a student. These findings were based on the applicant’s circumstances in Australia, immigration history and lack of an adequate explanation regarding the value of the proposed course of study to her future.

   Background

4. The applicant is a citizen of China and is 37 years old. She came to Australia most recently on 9 June 2016 as the holder of Subclass 600 Visitor Visa. The applicant had declared an intention to remain in Australia for 20 days, however, on 6 July 2016 the applicant applied for a student visa and enrolled in a series of courses including English, Business and Leadership and Management.

5. The applicant appeared before the Tribunal on 16 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 to study as is required for the grant of a student visa.

9. 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.

10. ‘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.

11. Since her arrival in Australia, the applicant completed a General English course however, on 16 September 2016 the Department refused to grant the applicant a student visa. The applicant said she began to study a Diploma course but as her visa was not granted, her course was cancelled. According to the applicant, after her arrival in Australia she was introduced to a migration agent and had paid six months of tuition fees. She said she gave her migration agent $8,000 and had not thought there would be a problem. The applicant said she was asked to pay a further $2,200 but her visa had not been granted. Then in March 2017 the applicant’s education provider requested fees of $3,000 so she stopped going to the college.

12. The Tribunal explained to the applicant that enrolment in a course of study was a requirement for the grant of the visa. The applicant responded that she had spent time and money on this matter and that she was a victim.

13. The Tribunal has considered the applicant’s evidence but notes her evidence that she is not currently enrolled and is not studying. In the invitation to attend a hearing dated 23 October 2017, the applicant was asked to provide a copy of a current Certificate of Enrolment (COE) as required for the grant of a student visa. However, no COE has been provided. 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.

14. 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

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

    Wendy Banfield
    Member