Melendenz Grandez (Migration)

[2019] AATA 5871

Melendenz Grandez (Migration) [2019] AATA 5871 (20 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Martha Melendenz Grandez

CASE NUMBER:  1732488

HOME AFFAIRS REFERENCE(S):          BCC2017/4401573

MEMBER:P. Wood

DATE:20 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 20 September 2019 at 2:44pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – no current enrolment – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 500.111, 500.211; r 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 Immigration and Border Protection on 5 December 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 22 November 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. On 23 August 2019 the Tribunal wrote to the applicant with an invitation to attend a hearing at 1.30pm on 20 September 2019. In the same letter the Tribunal requested evidence of enrolment in a course of study be provided.

4. On 13 September 2019 and 19 September 2019 the Tribunal sent SMS text reminders to the applicant concerning the hearing at 1.30pm on 20 September 2019. The applicant 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 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.

   Enrolment (cl.500.211)

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. The applicant did not provide the Department or the Tribunal with evidence of being enrolled in a course of study as required by the Regulations. As such, 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.

10. 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

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

    P. Wood
    Senior Member