Liu (Migration)

[2021] AATA 4883

Liu (Migration) [2021] AATA 4883 (15 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kuang-yu Liu

CASE NUMBER:  2004694

HOME AFFAIRS REFERENCE(S):          BCC2019/883564

MEMBER:David Thompson

DATE OF ORAL DECISION:  15 December 2021

DATE OF WRITTEN STATEMENT:         15 December 2021

PLACE OF DECISION:  Perth

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

Statement made on 15 December 2021 at 4:17pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – course finished and no current enrolment – inquiries about further study – recent marriage to Australian citizen and application for partner visa in progress – decision under review affirmed

LEGISLATION
Migration Act 1959 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.111, 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 Home Affairs on 27 February 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 14 January 2020. 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 (Cth) (the Regulations) because she was not satisfied that the applicant intends genuinely to stay in Australia only temporarily.

4. The Tribunal gave its decision on the review at the conclusion of the hearing held on 15 December 2021. The following are the reasons for that decision.

5. The applicant appeared before the Tribunal on 15 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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 was originally the issue of whether the applicant met the requirements of cl 500.212. However, in the circumstances set out below, the issue at hearing became the issue of whether the applicant met the enrolment criteria of cl.500.211.

   Enrolment (cl 500.211)

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 reg 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 (Cth), to provide the course to overseas students.

11. In this case the applicant was, at the date she was invited to attend a hearing before the Tribunal, enrolled in a Diploma of Remedial Massage course. However, she informed the Tribunal in the documentary evidence provided before hearing that she had finished that course. At hearing, she also stated that she was not currently enrolled. The applicant volunteered that information herself, but also gave it in the course of responding to or commenting on information found in her record in the Provider Registration and International Student Management System and put to her by the Tribunal pursuant to s.359AA of the Act. She explained that having finished her Diploma of Remedial Massage, she was hoping to study for a further qualification, a Bachelor of Health Science (Acupuncture Therapies) with Endeavour College of Natural Health. She gave evidence that she had enquired regarding enrolment, but that she had not actually applied for enrolment as yet. She explained that she had been attempting to obtain credits for previous studies, and that she also had to complete an IELTS test with an overall mark of 7.0 as a prerequisite for enrolment. This she had not yet done.

12. The applicant went on to explain that a further matter had arisen – she had recently married an Australian citizen, and was in the process of applying for a partner visa. The Tribunal notes in passing that there is no evidence currently before it to suggest that the applicant’s marriage is anything but genuine. The Tribunal makes no findings in that regard. However, nor does the evidence as to the applicant’s current attempts to enrol in a Bachelor of Health Science (Acupuncture Therapies) amount to evidence of enrolment in a course of study for the purposes of cl.500.211 of Schedule 2 to the Regulations.

13. The Tribunal informed the applicant at hearing that it proposed to change the determinative issue in this case from the issue of whether the applicant met the requirements of cl.500.212 to the issue of whether the applicant met the requirements of cl.500.211. The applicant and her representative were both given an opportunity to respond to that proposal and to make submissions on it. Neither of them availed themselves of that opportunity, but rather were willing to let the Tribunal change the determinative issue and to decide the review application on that basis.

14. In the circumstances set out above, the Tribunal cannot be satisfied, and 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.

15. 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

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

    David Thompson
    Member