LIN (Migration)

[2018] AATA 1179

LIN (Migration) [2018] AATA 1179 (15 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MIAO LIN

CASE NUMBER:  1614858

DIBP REFERENCE(S):  BCC2016/2333807

MEMBER:Michael Edgoose

DATE OF ORAL DECISION:  15 March 2018, 14.11 (Vic time)

DATE OF WRITTEN STATEMENT:         15 March 2018

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 15 March 2018 at 3:20pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant is enrolled in a “registered course” – Applicant not enrolled in a registered course

LEGISLATION
Education Services for Overseas Students Act 2000, Pt 2 Div 3
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.111, 500.211(a)

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 on 29 August 2016 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 12 July 2016. 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 delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. The Tribunal gave its decision on the review at the conclusion of the hearing held on 15 March 2018. The following are the reasons for that decision.

5. The applicant appeared before the Tribunal on 15 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an accredited interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 that the applicant does not meet the requirements of cl.500.211.

8. 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).

9. ‘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.

10. The Tribunal put to the applicant do you understand that not having a Confirmation of Enrolment means that you don’t meet a mandatory Visa condition and the Tribunal can affirm the decision? The applicant responded yes I understand that the Tribunal can affirm the decision.

11. The applicant was asked on several occasions if he had any further comments to make to the Tribunal about this issue. The applicant responded that he had on several occasions tried to obtain a new Confirmation of Enrolment but had not been able to obtain one.

12. The applicant stated to the Tribunal that he had not been enrolled in a course of study since July 2016. 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.

13. 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

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

    M. Edgoose
    Member