MIANGSANTHIA (Migration)

[2018] AATA 4133

MIANGSANTHIA (Migration) [2018] AATA 4133 (10 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kanokporn MIANGSANTHIA

CASE NUMBER:  1709764

HOME AFFAIRS REFERENCE(S):           BCC2017/1150836

MEMBER:Wendy Banfield

DATE:10 September 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 10 September 2018 at 1:22pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine student – no evidence of course enrolment – decision under review affirmed

PRACTICE AND PROCEDURE – applicant did not respond to the hearing invitation

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 1.03 Schedule 2 cls 500.111, 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 Immigration and Border Protection on 20 April 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 24 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 cl.500.212 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 Thailand and is currently 33 years old. She came to Australia on 5 September 2016 as the holder of a Subclass 570 Student visa to study English Language. The applicant completed a General English course and enrolled to study a Certificate III and IV in Business and a Diploma of Leadership and Management, however, those enrolments have been cancelled. At the time of the hearing, the applicant was not enrolled in a course of study.

5. The applicant appeared before the Tribunal on 13 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

6. The applicant was assisted in relation to the review.

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 enrolled in an approved course of study as required for the grant of a student visa.

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. On 26 July 2018 the applicant was invited to attend a hearing scheduled for 13 August 2018. The invitation asked the applicant to provide a copy of a current Certificate of Enrolment (COE) or other documents that show she 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.

12. At the Tribunal hearing on 13 August 2018 the applicant was advised that in order to be eligible for a student visa, she 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 she is enrolled in an approved course of study.

13. On 23 August 2018 the Tribunal wrote to the applicant inviting her to comment or respond to information in accordance with s.359A of the Migration Act. The information put to the applicant was as follows:

    On 26 July 2018 you were invited to attend a hearing scheduled for 13 August 2018. In the invitation to attend a hearing you were asked to provide a copy of a current Certificate of enrolment or other documents that show you are currently enrolled in a course of study as required for the grant of a student visa. You did not provide evidence of enrolment prior to the hearing.

    You attended the hearing and gave evidence in support of your application; however, you did not provide evidence of enrolment. At the hearing you indicated you would reenrol if granted a Student Visa, however, as explained to you, in order to eligible for the grant of a Student Visa, you must be enrolled in an approved course of study at the time of decision.

    In conducting the review, the Tribunal is required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information now being put to you is that according to the Provider Registration and International Student Management System (PRISMS) records, you are not enrolled in a course of study. PRISMS records show you completed a General English course in 2016 but your enrolment in Certificates III and IV in Business and a Diploma of Leadership and Management have been cancelled. This information is relevant to the review because cl.500.211 of the Migration Regulations state that at the time of decision, to be eligible for the grant of a student visa an applicant must be enrolled in a full-time registered course of study. If the Tribunal relies on this information in making a decision, it may lead to the decision under review being affirmed.

    You are invited to give comments on or respond to the above information in writing.

14. The applicant was advised that if the Tribunal relies on the information it may lead to the decision under review being affirmed. She was invited to comment on or respond to the information and was advised that she may request in writing, an extension of time to respond, which the Tribunal would consider. The applicant was also told that if no response was received, a decision may be made without any further action being taken to obtain her views on the information. The applicant did not respond to the invitation to comment or request an extension of time and did not provide any further evidence in her case.

15. 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.

16. 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

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

    Wendy Banfield
    Member