NGO (Migration)

[2019] AATA 386

NGO (Migration) [2019] AATA 386 (6 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Isabelle NGO

CASE NUMBER:  1714654

HOME AFFAIRS REFERENCE(S):           BCC2017/1033664

MEMBER:Wendy Banfield

DATE:6 February 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 06 February 2019 at 2:11pm

CATCHWORDS

MIGRATION –  Student (Temporary) (Class TU) – Subclass 500 (Student) – enrolment in registered course – enrolment cancelled  – Tribunal granted extension of time – no Confirmation of Enrolment – conditional TAFE offer – decision under review affirmed   

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 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 19 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 applicant applied for the visa on 15 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 France and is currently 45 years old. She first came to Australia in 2004 and held working holiday and temporary work visas before she was granted a student visa in 2014. Since being granted a student visa, the applicant has completed a Diploma in Laboratory Technology. Her enrolment in a Bachelor of Business (Accounting) was cancelled and at the time of the hearing, the applicant was not enrolled to study.

5. The applicant appeared before the Tribunal on 9 January 2019 to give evidence and present arguments.

6. The applicant was assisted in relation to the review by their registered migration agent. The migration agent did not attend the hearing.

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 4 December 2018 the applicant was invited to attend a hearing scheduled for 9 January 2019. The invitation asked the applicant to provide a copy of a Confirmation 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 prior to the hearing as requested.

12. At the Tribunal hearing on 9 January 2019 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. The applicant claimed that because her student visa was refused, her enrolment was cancelled and despite approaching many different education providers, she had not been able to obtain a COE. The applicant asked for time after the hearing to investigate any other enrolment options such as a more flexible study program. Since the hearing occurred soon after the Christmas and New Year holiday period, the Tribunal allowed the applicant a period of two weeks to provide evidence of enrolment. The applicant was advised that she may request additional time and her request would be considered. The applicant was also advised that if she provided evidence of enrolment, she would be assessed against the genuine temporary entrant criteria and that enrolment would not guarantee the visa would be granted.

13. On 21 January 2019 the applicant requested an extension of time to provide a COE, although no reason for the request was provided, a further two week period was given. On 5 February 2019 the applicant asked for an additional two weeks to submit a letter of offer. The reason given was that the applicant is in the process of finalising her enrolment with TAFE. A provisional letter of offer dated 30 January 2019 was submitted at the same time. The provisional letter of offer requires the applicant to meet certain conditions before a full offer is made. The Tribunal considered the request and decided not to grant a further extension of time.

14. The applicant had been asked to provide a COE at the time she was invited to a hearing. She was also advised during the hearing that it in order to meet the criteria for the grant of a student visa, it is necessary to be enrolled in a course of study. The applicant claimed that since her visa was cancelled she had investigated options and approached different institutions but had been unable to obtain a COE. However, after the hearing the applicant was able to obtain a conditional offer from TAFE without any apparent difficulty. It is not clear why the applicant did not arrange her enrolment in advance of the hearing since it is a mandatory requirement for the grant of a student visa. The applicant has not provided a COE or a full offer from an education provider and it is not clear whether she will be able to meet the conditions outlined in the conditional offer from TAFE. In the circumstances the Tribunal does not consider it appropriate to grant an addition extension of time, two periods of two weeks having been granted already. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and cl.500.211 is not met.

15. 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

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

    Wendy Banfield
    Member