LUM (Migration)

[2018] AATA 5478

LUM (Migration) [2018] AATA 5478 (17 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sun Ching LUM

CASE NUMBER:  1714369

HOME AFFAIRS REFERENCE(S):           BCC2017/992305

MEMBER:Wendy Banfield

DATE:17 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 17 December 2018 at 5:21pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant criterion – not enrolled in an approved course at the time of decision – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.218
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 Immigration and Border Protection on 30 June 2017 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 13 March 2017. 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 cl500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because it was determined the genuine temporary entrant criteria had not been met.

   Background

4. The applicant is a citizen of Malaysia and is currently 29 years old. He came to Australia most recently on 8 October 2016 as the holder of a Subclass 572 Student Visa. The applicant had travelled to Australia previously in 2012 but discontinued his studies at that time and returned to Malaysia for family reasons. The applicant had been enrolled in Business related courses but did not continue his studies and has not completed any educational programs in Australia. The applicant was married on 23 September 2018. Evidence was provided in the form of birth and death certificates to indicate he and his wife (previously partner) had a baby on 22 August 2018 who passed away the same day.

5. The applicant appeared before the Tribunal on 17 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an 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 whether the applicant is enrolled in an approved course of study as required for the grant of a student 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 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. On 9 November 2018 the applicant was invited to attend a hearing scheduled for 17 December. The invitation asked the applicant to provide a copy of a current Certificate of Enrolment (COE) or other documents that show he is currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994. The applicant was advised that a COE is required for the grant of a student visa. The applicant did not submit a COE as requested.

11. At the Tribunal hearing on 17 December 2018 the applicant 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 did not provide evidence of enrolment or other documents that show he is enrolled in an approved course of study.

12. The applicant confirmed to the Tribunal that he was not currently enrolled to study. During the hearing he said he had not continued the course he had been enrolled in previously because he had met his wife in Australia and they had a baby who had passed away. He said he had wanted to stay in Australia in order to arrange the funeral. According to the applicant’s oral evidence he still wished to study in Australia. He said he wanted to take a language course but when it was put to him that he had not provided evidence of enrolment, the applicant conceded he was not enrolled. He also agreed he had not completed any course in Australia since his most recent arrival on 8 October 2015. This was despite having been enrolled in numerous courses that were subsequently cancelled.

13. The applicant said his wife is a childcare worker and she has applied for permanent residency in Australia which includes him as a secondary applicant. Although the applicant provided written evidence of his marriage, the birth and death of a child and a medical report from the Royal Hospital for Women in relation to his wife, no further satisfactory evidence or submissions were received regarding the application for a student visa.

14. 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. As enrolment in a course of study is a mandatory requirement for the grant of a Student Visa, the Tribunal has no discretion in the matter.

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.

    Wendy Banfield
    Member