Lemos Clinquart (Migration)

[2020] AATA 3014

Lemos Clinquart (Migration) [2020] AATA 3014 (14 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thais Lemos Clinquart

CASE NUMBER:  2004098

HOME AFFAIRS REFERENCE(S):          BCC2019/5507576

MEMBER:Steven Griffiths

DATE:14 May 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 14 May 2020 at 2:37pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – current enrolment in a registered course – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 1.03; Schedule 2 cl 500.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 12 February 2020 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 1 November 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.500.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. On 31 March 2020 the Tribunal wrote to the applicant via [email] inviting her to a hearing, pursuant to s.360(1) of the Act, scheduled for 14 May 2020 and providing the opportunity for any additional information, and in particular a current Confirmation-of-Enrolment, that they may wish to rely upon to be provided, at least 7 days before the hearing. 

5. On 14 May 2020 the Tribunal received a submission from the applicant providing records from aa payment made to Torrens University on 5/9/19, records of study by the applicant in Brazil, letter of support from a Senior Lecturer of Torrens University dated 7/6/19, details of completion of a Advance Diploma of Leadership and Management with Universal Institute of Technology dated 1/11/17,  letter of support from the Flinders Street Campus Counsellor dated 7/6/19, death certificate of her father in Brazil on 19/7/19, report from Latrobe Community Health dated 7/6/19 and details of her departure from a previous employer.

6. The applicant appeared before the Tribunal on 14 May 2020 to give evidence, respond to questions and present arguments.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were raised by the parties on holding a telephone hearing and the Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.   

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

   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.

10. The Tribunal has read and had regard to information provided by the applicant to the Department. The Tribunal has also read and had regard to the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant with her application for review.

11. The Tribunal notes the delegate’s decision was based around compliance with cl.500.211 of the Regulations and if the applicant was enrolled in a course of study, with the applicant having been provided with an opportunity to provide a valid confirmation-of-enrolment and had not provided evidence.

12. The applicant is a 34-year-old female citizen of Brazil, who arrived in Australia on 9 March 2015 on a Training and Research 402 Visa, granted 23/2/15 and to cease 12/4/16. She was granted a Student 572 Visa on 18/7/16, to cease 3/11/17 and a Student 500 Visa on 24/11/17, to cease 1/11/19 and has been on a WA-010 Bridging Visa from 4/11/19.

13. The Tribunal has read and had regard to the submission of the applicant received on 14 May 2020.

14. The Tribunal determines the issue in the case is whether the applicant satisfies the primary criteria contained in cl.500.211 of the Regulations, which states the following must be satisfied:-

    500.211 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 education institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

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

15. 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.

16. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulation 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. The applicant did not claim to meet any of the alternative criteria of cl.500.211.

17. The Tribunal notes the documented evidence of the applicant received on 14 May 2020 does not include a current confirmation-of-enrolment in a course of study.

18. The Tribunal notes the documented and oral evidence of the applicant that she had transferred funds to Torrens University on 5 September 2019 for part of her study costs, and that the enrolment was cancelled on 16 September 2019.

19. The Tribunal accepts the oral evidence of the applicant that she has emails from December 2019 to May 2020 to Torrens University attempting to obtain a confirmation-of-enrolment.    

20. The Tribunal notes the oral evidence of the applicant that she is not currently enrolled in a course of study.

21. Therefore, the Tribunal is 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.

22. 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

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

    Steven Griffiths
    Member