Lekaj (Migration)

[2022] AATA 4964

Lekaj (Migration) [2022] AATA 4964 (25 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Anisa Lekaj

Master Pavlin di Paulo

REPRESENTATIVE:  Mr Entel Dajsmaili (MARN: 0641441)

CASE NUMBER:  1935990

HOME AFFAIRS REFERENCE(S):          BCC2019/4978701

MEMBER:David Thompson

DATE:25 July 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa. The Tribunal has no jurisdiction as regards the second-named applicant.

Statement made on 25 July 2022 at 1:56pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – not enrolled in a course of study – decision under review affirmed

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 Home Affairs on 17 December 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first-named applicant (applicant) applied for the visa on 4 October 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 (Cth) (the Regulations) because she was not satisfied that the applicant intended genuinely to stay in Australia only temporarily. However, as will be discussed below, the determinative issue in this case because the issue of whether the applicant met the requirements of cl 500.211.

4. The applicant was assisted in relation to the review.

5. On 4 March 2021 the Tribunal wrote to the review applicant pursuant to s 359(2) of the Act, inviting him to provide information relevant to the issues of whether she was enrolled in a registered course of study, and whether she was a genuine applicant for entry and stay as a student. The particular information the Tribunal sought was contained in a Request for Student Visa Information form accessible by means of a link included in the Tribunal’s invitation. The Tribunal’s invitation stated that a response was required by 18 March 2021. On 10 March 2021, the applicant sought an extension of that date. That request was granted, and the date by which the applicant’s response was required was extended to 1 April 2021. The applicant returned a completed Request for Student Visa Information form to the Tribunal on 26 March 2021, within the extended time limited for her response.

6. One of the questions asked of the applicant in the Request for Student Visa Information form was whether or not she consented to the Tribunal deciding her review without a hearing. In answering that question, she stated that he did consent to the Tribunal deciding the review without a hearing. That being the case, no hearing has been held, and this matter has been determined on the evidence available to the Tribunal at the date of this decision.

7. On 25 July 2022, the date of this decision, the Tribunal received a withdrawal of application request in respect of the second named applicant, Master Pavlin di Paulo, following correspondence with the applicants’ representative on the topic. That request was properly made and has been accepted by the Tribunal. That being the case, the Tribunal has no jurisdiction as regards the second named applicant.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed as regards the applicant. The Tribunal has no jurisdiction as regards the second-named applicant, and makes no decision in his respect.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 was originally that of whether the applicant met the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth). However, that is not the issue on which this review application has been determined.

10. On 6 July 2022 the Tribunal obtained an extract from the applicant’s record in the Provider Registration and International Student Management System (PRISMS). That record showed that the applicant was not, at that date, enrolled in any registered course of study. On 7 July 2022, the Tribunal wrote to the applicant pursuant to s 359A of the Act, inviting her to provide comments on or a response to that fact. The Tribunal’s letter explained the relevance of this issue, explaining that enrolment in a fulltime registered course of study was a requirement for the grant of a student visa, and that if the Tribunal were to rely on the information in question and find that the applicant was not enrolled in such a course of study, that would be a reason or part of a reason for the Tribunal to affirm the decision of the delegate to refuse the grant of a student visa.

11. The applicant responded to the Tribunal on 21 July 2022, within the time limited in the Tribunal’s information. That response was in the form of a personal letter, received by the Tribunal under cover of an email message from the applicant’s representative. The applicant admitted that she was not currently enrolled in a course of study, and explained the circumstances in which that state of affairs arose. In summary, the applicant stated that she had held a Confirmation of Enrolment (CoE) from a course provider trading as Equals International for a Diploma of Leadership and Management at the date when she applied for her visa (4 October 2019), but that she did not commence studies while waiting for the determination of her review application because she obtained work and was also looking after her son (along with his father, the applicant’s ex-partner). She had determined to start studying for her Diploma of Leadership and Management on 2 May 2022, but was unable to do so because she had to go to hospital for an operation on that very day and was required to take two weeks bed rest after being discharged from hospital. During that period, her course provider cancelled her enrolment because she had not commenced her studies, and would not reinstate it unless she made a new application for admission. The applicant also stated that the course provider intimated that it would not provide her with a fresh CoE, as her application would be reviewed by the provider’s compliance team.

12. The applicant has provided no evidence of having made a fresh application for admission to the Diploma of Leadership and Management course offered by Equals International, nor of having made any application to any other course provider. Her written statement is slightly unclear on that point, but the fairest reading that can be given to it is that she had not done so. This is reinforced by her representative’s covering letter, which requests an indication as to whether the Tribunal will set aside the delegate’s decision if the applicant can produce a valid CoE. Needless to say, the Tribunal declined to accede to that request, stating that it would determine the matter on the evidence before it at the date of decision. The Tribunal infers from the applicant’s statement and from her representative’s request that the applicant has neither applied for a fresh enrolment nor obtained one, and consequently holds no current CoE The Tribunal finds accordingly.

    Enrolment (cl 500.211)

13. 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.

14. ‘Course of study’ is relevantly defined in cl 500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in reg 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 (Cth), to provide the course to overseas students.

15. In the circumstances set out above, the Tribunal will determine this matter on the basis of the applicant’s failure to meet the requirements of cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth), rather than on the original issue of whether she meets the requirements of cl 500.212. That is because cl 500.211 defines a mandatory criterion for the grant of a student visa. The Tribunal has no discretion in that regard, and no power to dispense with the need for an applicant to meet that criterion. I note that the applicant has provided evidence relevant to compliance with cl 500.212, but there is no utility in discussing that evidence as, in the circumstances of this case, it can make no difference to the applicant’s overall eligibility for the grant of the visa she has sought.

16. For the reasons and findings set out in paragraphs 10 to 12 above, 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.

17. 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 in respect of the applicant must be affirmed.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa. The Tribunal has no jurisdiction as regards the second-named applicant.

    David Thompson
    Member