Perera (Migration)

[2025] ARTA 448

PERERA (MIGRATION) [2025] ARTA 448 (27 FEBRUARY 2025)

DECISION AND  

REASONS FOR DECISION

Applicant:Ms Bernadette Cleonne Perera

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2320201

Tribunal:General Member Noelle Hossen

Place:Perth

Date:  27 February 2025

Decision:The decision under review is affirmed.

Statement made on 27 February 2025 at 1:31pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine student – genuine temporary entrant – enrolment in a registered course – applicant ceased enrolment – decision under review affirmed           

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 500.111, 500.211, 500.212; r 1.03

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 November 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 12 September 2023. 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 (Cth) (the Regulations) because the applicant was not a genuine applicant for entry and stay as a student.

4. For the reasons explained below, the issue now before the Tribunal is whether the applicant is enrolled in a course of study as required by clause 500.21.

5. On the 3 February 2025 the Tribunal wrote to the review applicant inviting the review applicant to provide the following information in writing.

   “As you applied for the visa based on undertaking a course of study in Australia it is a requirement of the visa, for you to be:

   - Enrolled in a registered course of study and

   - A genuine applicant for entry or stay as a student.

   The Tribunal sent a request for sufficient information to prove that the applicant was enrolled in a course of study. The Tribunal sent a Form to be completed being a Request for Student Visa Information Form.

6. On the 11 February 2025 the applicant returned the Form stating that they were not enrolled in a Course of Study.

7. The Tribunal sent an invitation to a hearing to the applicant and on the 27 February 2025, she replied that she did not wish to attend the hearing and that she wanted the application to be dealt with without a hearing.

8. The applicant was assisted in relation to the review.

9. For the following reasons, the Tribunal considers the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 in Australia.

    Enrolment (cl 500.211)

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 reg 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 (Cth), to provide the course to overseas students.

13. The applicant confirmed in writing in the Request for Student Visa Information that she was not enrolled in a Course of Study. The Tribunal accepts the evidence that the applicant is not enrolled in a Course of Study as required by the Act. 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.

14. 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

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

    Dates of hearing(s):  No hearing 

    Representative for the Applicant:           Mr Rodney Malcolm Calhaem (MARN: 9581377)