Lu (Migration)

[2020] AATA 2742

Lu (Migration) [2020] AATA 2742 (23 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yu-Fen Lu
Mr Chia-Yi Tai

CASE NUMBER:  1832601

HOME AFFAIRS REFERENCE(S):          BCC2018/3346711

MEMBER:Peter Haag

DATE:23 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 23 April 2020 at 4:40pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – no current enrolment – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212, 500.311; 1.03

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 19 October 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 4 September 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia.

4. The applicants were assisted in relation to the review by their registered migration agent.

5. On 19 March 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information in writing about the Student visa and, in particular, sufficient information to satisfy the Tribunal that the applicant is enrolled in a registered course of study; and, that the applicant is a genuine applicant for entry and stay as a student. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by 2 April 2020, the Tribunal may make a decision on the review without taking further steps to obtain the information, and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. In her response, the review applicant indicated that the applicants 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) of the Act, the review applicant is no longer entitled to appear before it.  After giving regard to the consent to decide the review without hearing, the Tribunal decided to proceed to a decision based on the available evidence, and not to seek additional information. This matter has therefore been determined on the evidence available to the Tribunal.

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 is whether the applicant is currently enrolled in a course of study.

   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 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.

11. The Tribunal has considered the contents of the Department filed and the Tribunal file. In the Department filed there is no evidence that establishes the applicant is currently enrolled in a course of study.

12. The evidence in the Tribunal file relevant to the applicant’s current enrolment status – in particular, the letter dated 27 Match 2020 that was provided by the applicant’s migration agent, SunSams – satisfies the Tribunal that the applicant is not claiming to be currently enrolled in a course of study and that she is not enrolled in a course of study.

13. Based on the evidence before the Tribunal, the Tribunal is not satisfied the applicant is currently enrolled in a course of study. 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.

15. Because the review applicant Yu-fen LU was found not to meet cl.500.212, the dependant applicant Chai-yi TAI does not satisfy cl.500.311 of Schedule 2 to the Regulations; accordingly, no further assessment in respect of Chai-yi TAI’s application is necessary or required.

    DECISION

16. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Peter Haag
    Member