Low (Migration)

[2024] AATA 3733

Low (Migration) [2024] AATA 3733 (11 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kha Chun Low

REPRESENTATIVE:  Ms Jing Wu (MARN: 0961859)

CASE NUMBER:  2304208

HOME AFFAIRS REFERENCE(S):          BCC2023/1354843

MEMBER:Penelope Hunter

DATE:11 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 11 September 2024 at 4:12pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant failed to provide requested information within the prescribed period – applicant is not currently enrolled in a course of study – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.211

Education Services for Overseas Students Act 2000

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 10 March 2023 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 24 February 2023. 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 the delegate was not satisfied that the applicant met the genuine temporary entry criteria.

4. The applicant appeared before the Tribunal on 24 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was assisted in relation to the review, however his representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is a 31 year old, male citizen of Malaysia. He applied for the visa in order to undertake study in a Certificate IV in Leadership and Management and a Diploma in Leadership and Management.

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 before the delegate was whether the applicant met the criteria in cl 500.212 of Schedule 2 of the Regulations, being the genuine temporary entrant criteria. On review the issue arose as to whether the applicant satisfies the enrolment criteria for the grant of the visa.

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). The applicant does not claim to meet any of the alternative criteria in cl 500.211.

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 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.

10. The Tribunal received an application for review from the applicant on 24 March 2023. On 16 October 2023, the Tribunal sent a request for information to the applicant pursuant to s 359(2) of the Act that he complete a Student Visa Information form. This form under the hearing Section 6 – Enrolment and study in Australia, also included the note that not being enrolled in a registered course may be the reason, or part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue that was considered by the primary decision-maker. The correspondence also included the information that as he had applied for the visa on the basis of undertaking a course of study in Australia, it was a requirement of the visa for him to be:

    ·enrolled in a registered course of study; and

    ·a genuine applicant for entry and stay as a student.

11. On 30 October 2023, the applicant returned to the Tribunal a completed Student Visa Information form in which he set out his program of study. The applicant disclosed that while awaiting review he had completed the Certificate IV in Leadership and Management between 27 May 2021 and 14 May 2023 and that he was currently undertaking the Diploma of Leadership and Management which was due for completion on 4 July 2024. The applicant also submitted to the Tribunal evidence of completion of the Certificate IV and a letter dated 27 October 2023 from Workforce Education confirming the applicant’s enrolment.

12. On 5 July 2024, the applicant was invited to attend the Tribunal hearing on 24 July 2024.

13. On 11 July 2024, the applicant submitted a copy of a Certificate of Completion of the Diploma of Leadership and Management and a statement of his results.

14. At the hearing, the Tribunal asked the applicant if he was enrolled in a course of study and he said that he was not. He had recently completed the Diploma of Leadership and Management and he said that he was awaiting the outcome of the Tribunal review before making a further decision on enrolling in a course of study. The Tribunal then questioned the applicant as to whether he was aware, as previously advised by the Tribunal, that enrolment in a registered course of study was a requirement for the grant of the visa. The applicant said that he understood, but had only recently finished his last course and was waiting to see what would happen. The applicant was informed that without a valid enrolment he would not satisfy one of the primary criteria for the visa and he needed to demonstrate to the Tribunal on review that he had a valid enrolment in a registered course to be successful on review.

15. The applicant was asked whether he was still seeking a student visa and if intended further study. He claimed that he wanted to progress to the Advanced Diploma of Leadership and Management and had looked at a further enrolment. The Tribunal again explained to the applicant if he was not enrolled it was a ground for refusal of the visa on review. It was not possible for him to wait and see, he needed to demonstrate that he would meet the requirements for a future grant. The applicant said that he definitely intended to enrol. The Tribunal asked the applicant whether his education provider, Workforce Education, provided the Advanced Diploma and he confirmed that the did offer the course. The Tribunal advised the applicant that it would continue the hearing and discuss all relevant visa criteria. The applicant was advised that for a successful outcome on review he would need to demonstrate that he was enrolled in a registered course of study, otherwise the visa would be refused on this basis. The applicant confirmed he understood.

16. At the end of the hearing, the applicant was granted 14 days, until 7 August 2024, to submit evidence of enrolment in a course of study. He was again advised that the matter was in his hands to demonstrate that he met the visa criteria.

17. The applicant did not provide any further evidence to the Tribunal within the time permitted. Neither did he contact the Tribunal to request an extension of time. Considerable time has now elapsed since the hearing.

18. The Tribunal also had before it a copy of the applicant’s Provider Registration and International Student Management records. These were obtained prior to the hearing and confirm the evidence of the applicant presented to the Tribunal in relation to his enrolments. There is no further material adverse to the applicant contained in these records.

19. It follows that 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. It is considered that the Tribunal has put the applicant on notice of the importance of this requirement. Even though he may have studied in the past, if he wishes a student visa to be grant in the future he needs to demonstrate that he intends to study. He has the assistance of a migration agent, and he has further been given a reasonable time to demonstrate that he holds an enrolment in a registered course of study.

20. 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

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

    Penelope Hunter
    Member