Nako (Migration)

[2020] AATA 3464

Nako (Migration) [2020] AATA 3464 (19 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr. Anti Nako
Ms. Fijona Nako
Master Christian Nako

CASE NUMBER:  1904496

DIBP REFERENCE(S):  BCC2018/5088328

MEMBER:P. Adami

DATE AND TIME OF

ORAL DECISION AND REASONS:         19 June 2020 at 3:33 pm (VIC time)

DATE OF WRITTEN RECORD:                3 July 2020

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal affirms the decisions under review.

Statement made on 03 July 2020 at 11:20am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not a genuine temporary entrant – not enrolled in registered course of study – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994, Schedule 2, cls 500.211, 500.212

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 15 February 2019 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 19 June 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant is Mr. Anti Nako and the secondary applicants are Fiona Nako and Master Christian Nako. 

4. Mr. Nako, you applied for a visa on 15 November 2018 to undertake study in Australia.  At the time that the visa application was lodged the Student (Temporary) (Class TU) Visa contained two sub-classes.  Sub-class 500 Student and Sub-class 590 Student Guardian.  You applied for the visa on the basis of seeking to undertake study in Australia and you do not claim to meet the criteria for a Sub-class 590 Student Guardian Visa.

5. The delegate in your case refused to grant you the visa on the basis that you do not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations because the delegate was not satisfied that you were a genuine student who intends genuinely to stay in Australia temporarily. The delegate’s decision is dated 15 February 2019.

6. You appeared before the Tribunal today to give evidence and present arguments. The Tribunal explained the importance of your enrolment to this review. Arising from your evidence the Tribunal informed you that the determinative issue before the tribunal had changed. That is, the Tribunal informed you that the determinative issue had changed from the genuine temporary entrant criteria in clause 500.212, to the enrolment criteria in clause 500.211 of the Regulations.

7. You confirmed with the Tribunal and in your completed Request for Student Visa Information that you currently do not hold a Confirmation of Enrolment in a registered course of study.  You have not sought additional time to seek a Confirmation of Enrolment. 

8. The criterion for a Sub-class 500 Student Visa is set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need only satisfy the secondary criteria. As I’ve indicated, the issue before the Tribunal that is the determinative issue now, is whether you as the main applicant meet the enrolment criteria.

9. Clause 500.211 relevantly requires that at the time of this decision the main applicant is enrolled in a course of study.  This is per clause 500.211(a) of the Regulations. You do not claim to meet any of the alternative criteria in clause 500.211. “Course of study” is relevantly defined in clause 500.111 of the Regulations as: “A fulltime registered course”. 

10. On 7 April 2020 a written invitation to today’s hearing was sent to you care of your registered migration agent, Mr. Joseph Italiano. This is the nominated contact point as contained in your 27 February 2019 application for review. In that written invitation you were requested to provide evidence of your enrolment in a fulltime registered course to the Tribunal. The invitation provided that this information be provided at least seven days before today’s hearing.  Such evidence has not been provided to the Tribunal.  You did not provide any information in this regard.  Accordingly, there’s no evidence before me that you are enrolled in any course of study. 

11. The Tribunal notes that in the completed Request for Student Visa Information, your last enrolment ended in October of 2019. This was a general English course and you did not propose, in your concluded Request for Student Visa Information, any study after this course.  Therefore, the Tribunal is not satisfied that at the time of this decision you are enrolled in a course of study as required by clause 500.211.  Therefore, the Tribunal finds that clause 500.211 is not met. 

12. The Tribunal is mindful that at all times in this application for review you have been represented.  Given the findings the Tribunal finds that the criteria for the grant of a Sub-class 500 Student Visa are not met.  You do not claim to meet the criteria for a Sub-class 590 Student Guardian Visa. For these reasons the Tribunal has concluded that the decision under review must be affirmed. The Tribunal affirms the decision under review.

13. As the Tribunal has found that the primary applicant does not meet the criteria for the grant of a Student Visa, it must affirm the decision under the review that the secondary applicants do not meet clause 500.311, as they are not members of a family unit of a person who satisfies the primary criteria in clause 500.211. The secondary applicants do not make any claims or provide evidence that they satisfy the primary criteria.  Accordingly, the decision under review in regards to the secondary applicants must be affirmed.

14. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) Visas. This decision was made at 3.32 pm on 19 June 2020.  That concludes the hearing before the tribunal.

    DECISION

15. The Tribunal affirms the decisions under review.

    P. Adami
    Member