Perera (Migration)

[2020] AATA 1976

Perera (Migration) [2020] AATA 1976 (21 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Irippuge Shamal Mihiran Perera
Ms Sadeesha Gayathri Dharmarathna Wadu Thanthri

CASE NUMBER:  1819581

DIBP REFERENCE(S):  BCC2018/2041805

MEMBER:Michael Biviano

DATE AND TIME OF

ORAL DECISION AND REASONS:         21 January 2020 at 10:30 am (VIC time)

DATE OF WRITTEN RECORD:                13 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 13 March 2020 at 3:19pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212, 500.311; 1.03

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 15 June 2018 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 21 January 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 applicants applied for the visa on 10 May 2018.  At the time of the application class TU contained two subclasses of visa: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The primary applicant applied for a visa to undertake study in Australia and he does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

4. The delegate in this case refused to grant the visa on the basis that the primary applicant did not satisfy the requirements of cl. 500.212(a) of Schedule 2 to the Migrations Regulations 1994 (the Regulations) because the primary applicant was not a genuine applicant for entry and stay as a student because he did not intend to stay temporarily in Australia.

5. Further, as the primary applicant did not meet the requirements of cl.500.212 of Schedule 2 to the Regulations then the secondary applicant did not meet the requirements of clause 500.311 of Schedule 2 to the Regulations and she also did not meet the criteria for the grant of a student visa.

6. The primary applicant appeared before the Tribunal on 21 January 2020 to give evidence and to present arguments.  He was ably assisted by an interpreter and his migration agent. 

7. During the course of the hearing the primary applicant gave evidence that he was not at the date of the hearing presently enrolled in a course of study.

8. While the issue before the delegate was whether or not the primary applicant is a genuine temporary entrant, arising from the applicant’s evidence the issue before the Tribunal became whether at the time of the decision the primary applicant meets the enrolment requirement in cl.500.211(a) for a student visa.

9. The primary applicant acknowledged that he understood that the determinative issue before the Tribunal had changed.  The primary applicant was given an opportunity to address the tribunal in relation to this determinative issue.  The Tribunal also gave his representative an opportunity to make submissions to the Tribunal.

10. CONSIDERATION OF CLAM AND EVIDENCE

11. In relation to considering this application, the criteria for a Subclass 500 (Student) visa are set out at Part 500 of Schedule 2 to the Regulations.  The primary criteria in cl.500.211 to 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 was whether the primary applicant is a genuine applicant for entry and stay as a student. 

12. Cl.500.211 relevantly requires that at the time of this decision the primary applicant is enrolled in a course of study: cl.500.211(a).  The primary applicant does not claim to meet any of the alternative criteria in cl.500.211.

13. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’.  ‘Registered course’ is further 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.

14. On 13 September 2019, prior to the hearing, the Tribunal wrote to the applicants pursuant to s.359(2) of the Act inviting the primary applicant to provide information about the course(s) of study he was undertaking and about his entry and stay in Australia as a student in writing.  The invitation stated as follows:

    As you applied for the visas on the basis of undertaking a course of study in Australia it is a requirement of the visa for one of you (the main applicant) to be:

    ·enrolled in a registered course of study; and

    ·a genuine applicant for entry and stay as a student.

    Accordingly, you will need to provide sufficient evidence to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study the main applicant is undertaking and their entry and stay in Australia as a student.

15. The primary applicant filed a Response to the Request for Student Information on 30 September 2019 within the time which he was to file the Response, after having obtained an extension of time.  The Response confirmed that the primary applicant did not have a current Confirmation of Enrolment (COE) in a registered course of study.  The Response stated to the question: Does the main applicant have a current confirmation of enrolment (COE) in a registered course of study? The primary applicant stated in the Response – ‘No’. 

16. On 23 December 2019 the Tribunal sent a letter to the applicants, being an invitation to attend the hearing in this matter.  The letter relevantly provided at page 2:

    In addition, please provide the following information at least 7 days before the hearing date, so that a decision can be made as quickly possible.

    1.A copy of your current Confirmation of Enrolment (COE) or other document/s that show that you are currently enrolled in a course of study as defined in cl.500.111 and as required by cl.500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations), for the grant of a student visa.

17. Notwithstanding the invitation prior to the hearing, the primary applicant did not provide any details of any current enrolment in a course of study and did not provide to the Tribunal a current confirmation of enrolment certificate. 

18. Further, at the hearing on 21 January 2020 the primary applicant also did not provide a current confirmation of enrolment certificate and he confirmed in evidence that he was not enrolled in a course of study as at the date of the hearing.

19. The primary applicant gave evidence that he had undertaken extensive studies in a number of courses in the period of nearly 12 years that he has been staying in Australia.  He was enrolled in an Advanced Diploma of Leadership and Management at Danford College in April 2017, which he did not complete. 

20. He gave evidence that in September 2017 he enrolled in a Diploma of Human Resources Management at Canberra Business and Technology College but he did not complete that course. He explained that he did not complete his studies because the Department had made its decision refusing his visa notwithstanding he only had several units to complete the course.  Notwithstanding that explanation, he also gave evidence that he continued his studies through to October 2018. His explanation for not completing that Diploma was inconsistent with the fact that the delegate refused his visa on 15 June 2017.

21. In any event, the primary applicant himself cancelled the enrolment in the Advanced Diploma of Human Resources Management in 2018 and he has not been enrolled or undertaken any further studies since October 2018.

22. When the Tribunal questioned the primary applicant about whether he understood the consequences of not being enrolled in a course of study he replied that he understood.

23. In the circumstances the Tribunal was not satisfied that at the time of this decision, the primary applicant is enrolled in a course of study. Accordingly cl.500.211 of the Regulations is not met.

24. Given the above findings the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met.  The primary applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.  Further, as the primary applicant has not met the requirements of cl.500.211 of Schedule 2 to the Regulations, then the secondary applicant does not meet the requirements of cl.500.311 of Schedule 2 of the Regulations and she does not meet the criteria for the grant of a student visa.

25. Accordingly, the decision under review must be affirmed.  The decision of the Tribunal is that it affirms the decision not to grant the applicant the Student (Temporary) (Class TU) visas.

    DECISION

26. The Tribunal affirms the decisions under review.

    Michael Biviano
    Member