Lin (Migration)

[2019] AATA 2627

Lin (Migration) [2019] AATA 2627 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Zhenzhen Lin

CASE NUMBER:  1727054

HOME AFFAIRS REFERENCE(S):           BCC2017/3137881

MEMBER:Peter Booth

DATE:29 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 29 May 2019 at 1:41pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – no evidence of enrolment 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

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 3 November 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 30 August 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 applicant is not a genuine temporary entrant.

4. On 29 February 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about the application in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 12 March 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. In their response, the review applicant indicated that she consented to the Tribunal deciding the review without hearing. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 a registered course of study, for reasons which will become apparent.

7. On 3 November 2017, the applicant provided a Confirmation of Enrolment to the Tribunal.  That document confirmed that the applicant was enrolled in an Advanced Diploma of Leadership and Management at Angel United Group Pty Ltd, trading as St. Peter’s Institute.  The course was scheduled to start on 18 September 2017 and to be completed by 16 September 2018.  The applicant has provided no other Confirmation of Enrolment to the Tribunal.

8. On 12 March 2019 in response to an invitation from the Tribunal, the applicant provided various information.  Relevantly, the applicant answered positively to the question “Does the main applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?”.  The invitation to provide information from the Tribunal then requested that the applicant provide details of all courses that the main applicant has been enrolled in while in Australia, including “…current or future enrolment”.  In that regard, the applicant stated that she had completed a Bachelor of Business and Commerce – International Business and Economy in December 2012, and a Master of Professional Accounting in July 2015.  There was no reference to an Advance Diploma of Leadership and Management. 

9. In answer to an inquiry about why the applicant chose the education provider for the Australian course currently being studied, the applicant responded:

   “The reason why I would like to undertake the Advance Diploma of Leadership and Management course are as follows … I believe that St. Peters’ course would be my best choice.  Secondly, the Advanced Diploma of Leadership and Management …”

10. Notwithstanding the applicant’s positive answer to the inquiry as to whether she was currently enrolled in a course of study, it appears that the course of study to which she referred was that of an Advanced Diploma of Leadership and Management at St. Peters institute.  The only evidence before the Tribunal as to that course is a Confirmation of Enrolment, which shows that the applicant is not currently enrolled in that course, indeed that it has been concluded. 

11. 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.

12. ‘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.

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.

    Peter Booth
    Member