LEONG (Migration)

[2018] AATA 2631

LEONG (Migration) [2018] AATA 2631 (12 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wei Sen LEONG

CASE NUMBER:  1707456

HOME AFFAIRS REFERENCE(S):           BCC2017/531981

MEMBER:Wendy Banfield

DATE:12 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 June 2018 at 8:48pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Requirement to have a current confirmation of enrolment – Applicant does not have a current confirmation of enrolment – Decision affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth), Pt 2 Div 3
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 500.111

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 24 March 2017 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 8 February 2017. 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 the criteria of genuine temporary entrant for study were not met.

   Background

4. The applicant is a citizen of Malaysia and is currently 23 years old. He came to Australia on 9 November 2016 as the holder of a Subclass 601 Tourist Visa. The applicant declared he was travelling to Australia for 12 days for a holiday but on 8 February 2017 he applied for the Student Visa which is the subject of this review. The applicant claimed he wanted to study General English so that he can continue to work in the tourism industry in Malaysia.

5. When travelling to Australia as a visitor the applicant had declared his usual occupation to be ‘mechanic’, but later claimed in his Genuine Temporary Entrant statement that he had worked as a driver and in the tourism and hospitality sector. Then in his student visa application the applicant stated that since leaving school/college/university, he had been unemployed.

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 in an approved course of study as 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. On 23 April 2018 the applicant was invited to attend a hearing scheduled for 12 June 2018. The invitation asked the applicant to provide a copy of a current Certificate of Enrolment (COE) or other documents that show he is currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994. The applicant was advised that a COE is required for the grant of a student visa. The applicant did not submit a COE as requested.

12. The applicant did not respond to the invitation to attend a hearing and did not appear at the time and place scheduled. The applicant did not contact the Tribunal or seek to reschedule the hearing and did not submit evidence to demonstrate he is an enrolled student.

13. 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