Lopez Gopia (Migration)

[2021] AATA 2494

Lopez Gopia (Migration) [2021] AATA 2494 (18 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Juan Luis Lopez Gopia

CASE NUMBER:  2005097

HOME AFFAIRS REFERENCE(S):          BCC2019/6350102

MEMBER:Wendy Banfield

DATE:18 June 2021

PLACE OF DECISION:  Canberra

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

Statement made on 18 June 2021 at 4:27pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – no evidence of enrolment in an approved course of study – 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 Home Affairs on 25 February 2020 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 28 November 2019. 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 visas 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 it was determined the genuine temporary entrant criteria was not met.

4. The applicant appeared before the Tribunal on 18 June 2021 to give evidence and present arguments.

5. 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 to study as required for the grant of a student visa.

7. 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.

8. ‘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.

9. At the Tribunal hearing on 18 June 2021 the applicant was given an introduction to the proceedings and was advised that in order to be eligible for a student visa, he must be enrolled in an approved course of study at the time of decision. The applicant had not provided evidence of enrolment or other documents that show he is enrolled in an approved course of study. The applicant informed the Tribunal that he is intending to return to Peru as soon as border restrictions lift and he is able to travel. He said he has not provided a Confirmation of Enrolment certificate as he has finished studying in Australia. The Tribunal advised the applicant that because he is not enrolled and no longer plans to study, the decision would be affirmed. He indicated he understood. The Tribunal suggested to the applicant he would need to contact the Department about his departure intentions in the current COVID-19 environment once he receives the outcome of his application for review.

10. The Tribunal finds that at the time of this decision, the applicant is not enrolled in a course of study and accordingly cl.500.211 is not met.

11. 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

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

    Wendy Banfield
    Member