Oh (Migration)

[2019] AATA 1664

Oh (Migration) [2019] AATA 1664 (29 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Seunghyun Oh

CASE NUMBER:  1713882

HOME AFFAIRS REFERENCE(S):           BCC2017/771101

MEMBER:Bridget Cullen

DATE:29 January 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 29 January 2019 at 5:29pm

CATCHWORDS

MIGRATION – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – not enrolled in a course of study – no reponse – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, r 1.03, cls 500.111, 500.211 to 500.218

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 15 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 27 February 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 the delegate did not consider that the applicant was a genuine student intending to stay temporarily in Australia.

4. The applicant was assisted in relation to the review by their registered migration agent. On 12 December 2018, the Applicant requested that the Tribunal proceed to make a decision without a hearing, on the basis of the documents he had already provided.

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 c.500.211 of Schedule 2 to the Migration Regulations 1994.

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. Prior to making a decision, on 10 January 2019, the Tribunal wrote to the applicant inviting him to comment or respond to information as follows:

   The particulars of the information are:

   ·     Your International Movement Records, which indicate that you have been in

   Australia on temporary and associated bridging visas, since 3 May 2008.

   ·     Your Provider Registration and International Student Management System

   Records (attached with this letter), which indicate that you have not been enrolled
   in a registered course since 8 April 2018.
   This information is relevant to the review because it does not appear that you are a
   genuine applicant for entry and stay as a student. It is also relevant as Subclause
   500.211(a) requires that the applicant is enrolled in a course of study.

   If we rely on this information in making our decision, we may affirm the decision as the
   Applicant does not satisfy Clauses 500.212 and/or 500.211.

   You are invited to give comments on or respond to the above information by 24 January 2019. 

10. The applicant has not responded to the Tribunal’s invitation to comment or provide information, nor has he applied for an extension of time to respond.

11. In the absence of any information or response provided by the applicant, the Tribunal finds that the Provider Registration and International Student Management System Records reflect that he is not currently enrolled in a course of study. 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.

12. 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

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

    Bridget Cullen
    Member