MUTSONZIWA (Migration)

[2018] AATA 607

MUTSONZIWA (Migration) [2018] AATA 607 (7 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss BRENDA MUTSONZIWA

CASE NUMBER:  1620010

DIBP REFERENCE(S):  BCC2016/2306517

MEMBER:Penelope Hunter

DATE:7 March 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 07 March 2018 at 9:22am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Requirement to be enrolled in a registered course – Applicant not enrolled in a registered course at time of decision

LEGISLATION
Education Services for Overseas Students Act 2000, Pt 2 Div 3
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.111, 500.211(1)(a)

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 on 7 November 2016 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 9 July 2016. 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 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 that the applicant was a genuine applicant for entry and stay in Australia temporarily as a student.

4. The applicant appeared before the Tribunal on 22 February 2018 to give evidence and present arguments.

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. The issue in the present case is whether the applicant is enrolled in a course of study and satisfies the requirements of 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 applied for the visa in order to undertake study in a Diploma if Education (Secondary) commencing on 25 July 2016 and concluding on 15 July 2017. The applicant has completed this course and supplied to the Tribunal evidence of completion. The Tribunal accepts that she has undertaken this study.

10. Since completion of her course in July 2017 the applicant has not undertaken any further study. She told the Tribunal that she did not currently intend to undertake any further study. It is noted that the applicant has been in Australia studying since 19 December 2010. The applicant claimed to have been working and awaiting the Tribunal review. She was not working in education, or hospitality, the area of her former studies, but in aged care.

11. The applicant made submissions that the matter should be remitted because she had completed her course of study. This alone does not address the finding of the delegate that the applicant did not intend to stay in Australia temporarily. As discussed with the applicant at the hearing, in circumstances where the applicant is no longer studying, and does not intend to study in the future, she does not meet the criteria for the grant of the visa.

12. 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.

13. 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

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

    Penelope Hunter
    Member