Prado Ramos (Migration)

[2018] AATA 3730

Prado Ramos (Migration) [2018] AATA 3730 (6 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jesus Alberto Prado Ramos

CASE NUMBER:  1713696

HOME AFFAIRS REFERENCE(S):           BCC2017/1005239

MEMBER:Gabrielle Cullen

DATE:6 August 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 06 August 2018 at 11:34am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant – Currently not enrolled in a course – Ceased enrolment – No desire to study – Plan to leave the country – Decision under review affirmed


LEGISLATION
Migration Act 1958

(Cth), 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 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 14 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 decided to refuse to grant the visa on 12 April 2017. The delegate decided to refuse to grant the visas because the applicant the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate was concerned as to the length of his time in Australia and that he had completed a range of courses all at the vocational level.

4. On 27 June 2017 the applicant lodged an appeal to the Tribunal and attached the decision of the Department.

5. On 11 July 2018 the Tribunal wrote to the applicant and invited him to attend a hearing on 6 August 2018. The letter, among other matters, requested the applicant provide a current Confirmation of Enrolment (COE) or other documents that show he is currently enrolled in a course of study as defined in cl.500.211. It noted that this is required for the grant of a student visa. The letter also indicated that the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

6. The applicant appeared before the Tribunal on 6 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages. The Tribunal raised with the applicant that the matter before it is whether he meets the enrolment criteria as required by cl.500.211 required for the grant of a student visa.

7. At the hearing the applicant provided an itinerary showing he will depart Australia on 1 September 2018.

8. The applicant said he had completed his course in May 2018 being the Advanced Diploma of Leadership and Management and was no longer enrolled. He said he was leaving Australia and did not wish to continue studying in Australia. He said he had contacted the Department to advise of this and the Department advised him to come to the hearing and explain it to the Tribunal. He said he had been a genuine student but no longer wished to study here. He referred to the itinerary he had submitted indicating he is due to depart Australia on 1 September 2018.

9. For the following reasons, the Tribunal has concluded that 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. 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. The evidence from the applicant indicates that he is not currently enrolled in a course of study and ceased enrolment in May 2018 after he finished the Advanced Diploma of Leadership and Management. He appeared at the Tribunal to advise that he is leaving Australia and no longer enrolled or wishes to study. He also advised he had informed the Department. The Tribunal found the applicant to be a genuine and credible witness who has completed his recent study.

14. On the evidence before it, 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.

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 applicants  Student (Temporary) (Class TU) visas.

    Gabrielle Cullen
    Member