NANI (Migration)

[2018] AATA 5564

NANI (Migration) [2018] AATA 5564 (22 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Elly NANI

CASE NUMBER:  1713362

HOME AFFAIRS REFERENCE(S):           BCC2017/763053

MEMBER:Mara Moustafine

DATE:22 November 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 22 November 2018 at 4:06pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – withdrawn from Bachelor of Child Care after suffering an injury – not enrolled in a course of study at time of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 5 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 review applicant first arrived in Australia in 2009 as the holder of a Subclass TU 572 Student visa and subsequently held another Subclass TU 572 Student visa and a Subclass VC 485 Temporary Graduate visa. The applicant applied for a Subclass Student visa on 25 February 2017.

3. 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.

4. According to the Department decision record, a copy of which was provided to the Tribunal for the purposes of the review, the delegate 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 he was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

5. The applicant applied to the Tribunal for a review of that decision on 23 June 2017.

6. Ahead of the hearing the applicant provided to the Tribunal a submission addressing concerns raised by the delegate in his decision record and supporting documents, including a Confirmation of Enrolment (COE) for a Bachelor of Early Childhood Education and Care (24/07/2017 to 30/06/2021), completion certificates and academic transcripts for Certificates III and IV in Aged Care, Certificates III and IV in Business Administration, Diploma of Children’s Services, a statement of attainment in IELTS Preparation.

7. The applicant appeared before the Tribunal on 22 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. The issue before the delegate was whether the applicant met the criterion in cl.500.212. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

11. 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.

12. ‘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.

13. At the beginning of the hearing the Tribunal outlined the basic requirements for the grant of a Student visa, including the genuine temporary entrant (GTE) criterion and enrolment requirement.  It discussed with the applicant her immigration and study history since her arrival in 2009 and confirmed that it had received the submission noted at paragraph 6.

14. Asked whether she was currently enrolled and studying, the applicant said she had withdrawn from her Bachelor of Child Care in June 2018 after suffering an injury and was no longer enrolled. The Tribunal indicated that, while the issue before the delegate was whether the applicant met the GTE criterion, the issue now before the Tribunal was whether she met the enrolment requirement for a student visa.

15. In view of her evidence at hearing, 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.

    Mara Moustafine
    Member