Lim (Migration)

[2019] AATA 1561

Lim (Migration) [2019] AATA 1561 (12 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yung Shih Lim

CASE NUMBER:  1728070

DIBP REFERENCE(S):  BCC2017/3160172

MEMBER:Peter Haag

DATE AND TIME OF

ORAL DECISION AND REASONS:          12 April 2019 at 10:28 am (VIC time)

DATE OF WRITTEN RECORD:                13 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 13 May 2019 at 1:46pm

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 31 October 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 12 April 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in case number 1728070.  This is an application for review of a decision made by a delegate of the Minister of Immigration on 31 October 2017 to refuse to grant you a student temporary class TU visa under section 65 of the Migration 1958.  It will be referred to hereafter as the Act.

4. You applied for the visa on 31 August 2017 to undertake study in Australia.  At the time the visa application was lodged the student temporary class TU visa contained two subclasses; subclass 500 student and subclass 590 student guardian.  You, the applicant, applied for the visa to undertake study in Australia and you do not claim to meet the criteria for subclass 590 that is student guardian visa.

5. The delegate in your case refused to grant the visa on the basis that you did not satisfy the requirements of clause 500.212 of schedule 2 to the Migration Regulations 1994 hereafter referred to as the Regulations because the delegate was not satisfied that you were a genuine student who intends genuinely to stay in Australia temporarily.

6. You appeared before the tribunal today to give evidence and to present arguments.  You were represented in relation to the review by your registered migration agent and the hearing was conducted without the assistance of an interpreter and it was conducted in the English language.

7. While the issue before the delegate, and this is the issue upon which the delegate made the decision, was whether you are a genuine temporary entrant.  The issue before the tribunal now is whether at the time of this decision you meet the enrolment requirements for a student visa.

8. The criteria for a subclass 500 student visa are set out in part 500 of schedule 2 of the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant that is you. The issue now in this case is whether you the applicant is enrolled in a course of study as required for the grant of a student visa at this time.

9. Clause 500.211 relevantly requires that at the time of the decision the applicant is enrolled in a course of study.  That is set out in clause 500.211(a).  You, the applicant, you do not claim to meet any of the alternative criteria in clause 500.211.

10. Now, course of study is relevantly defined in clause 500.111 of the Regulations as a fulltime registered course. Registered course is defined in the Regulations as a course of education or training provided by an institution, body or person that is registered under the Education Services for Overseas Students Act 2000 to provide the course to overseas students. Now, you have been making inquiries with such organisations.

11. You acknowledge that you were sent a written invitation to attend the hearing today and that you received that invitation.  In that invitation you were requested to provide evidence of enrolment in an approved course of study to the tribunal at least seven days before the scheduled date of the hearing.  Such evidence has not been provided.  And you acknowledge that now and you have acknowledged that in the documents you sent to the tribunal that is that you are not enrolled.

12. At the hearing today I have again requested that you provide this evidence of enrolment to the tribunal.  You have not been able to provide evidence to demonstrate that you are currently enrolled.  In fact, to your credit you have honestly and openly agreed and conceded that you are, in fact, not currently enrolled in a registered course of study.

13. Now, accordingly there is not sufficient evidence before me that you are enrolled in a registered course of study.  In fact, the evidence is to the contrary, that you are not enrolled.  Therefore, the tribunal is not satisfied that at the time of this decision that you are enrolled in a registered course of study according to the requirements of clause 500.211.  Consequently, the requirements of that clause are not met.

14. Given my finding that the requirements of the law for you to be currently enrolled in a registered course of study have not been met the tribunal also finds that the criteria for the grant of a subclass 500 student visa are not met.  And you do not claim to meet the criteria for a subclass 590 student guardian visa.

15. For the foregoing reasons I have concluded that the decision under review should be affirmed.  The law gives me no option but to affirm the decision on the basis of the evidence that you have provided to the tribunal.  Therefore, the tribunal affirms the decision not to grant you, the applicant, a student temporary class TU visa.

    DECISION

16. The Tribunal affirms the decision under review.

    Peter Haag
    Member