Ronnachaitana (Migration)

[2018] AATA 2033

Ronnachaitana (Migration) [2018] AATA 2033 (19 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Pattaraporn Ronnachaitana

CASE NUMBER:  1704124

DIBP REFERENCE(S):  BCC2016/3781161

MEMBER:Jennifer Cripps Watts

DATE:19 April 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 19 April 2018 at 3:33pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine applicant for entry and stay as a student – No offer of enrolment at the time of decision – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.212, 500.211, 500.218
Education Services for Overseas Students Act 2000 (ESOS Act)

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 on 27 February 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 11 November 2016. 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 was not satisfied the applicant is a genuine applicant for entry and stay as a student.

4. The visa application that is the subject of this review was refused on 27 February 2017.  The applicant applied for review by this Tribunal on 8 March 2017, within time, and provided the Tribunal with a copy of the Department’s decision to refuse her student visa.  The applicant’s matter was constituted to this member and, on 4 April 2018, the Tribunal sent the applicant a written invitation to attend her hearing scheduled on 19 April 2018.    

5. The invitation to the hearing also included information relating to what types of evidence and statements the applicant should consider providing to the Tribunal before the hearing, specifically addressing the issue of whether she “...is a genuine applicant for entry and stay as a student by referring to Direction No.69.”  The Tribunal attached a copy of an extract from the Migration Act 1958, Direction Number 69 – Assessing the Genuine Temporary Entrant criterion for Student Visa and Student Guardian Visa Applications to the invitation, for her ease of reference.  The applicant was informed in the cover letter to the hearing invitation that she should refer to the delegate’s written decision and the reasons why she did not meet the criteria for the grant of the student visa.  She was also informed she should provide a copy of her current Confirmation of Enrolment (COE). 

6. The applicant responded to the hearing invitation and indicated she would attend the hearing with her representative and she requested a Thai interpreter.  The applicant did not provide the Tribunal with documentary information in support of her application prior to the hearing.  She handed up a bundle of documents at the hearing.

7. The applicant appeared before the Tribunal on 19 April 2018 to give evidence and present arguments.  The Tribunal also received oral evidence from Ms Vitchubavat Jirasanghot.  The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

8. The applicant was assisted in relation to the review by a registered migration agent, Mr Aphichart Saengthun, Migration Agent Registration Number 0106983.  He did not attend the hearing, but sent a colleague, Ms Kate Lertmankhong, who confirmed she is not a migration agent.  She did not participate in the hearing.  The applicant said she had brought her along for support.

9. For the following reasons, the Tribunal has concluded that 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 a genuine applicant for entry and stay as a student and meets primary criterion 500.212.

    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 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 applicant confirmed at the hearing she is not enrolled in a course of study and said this was because the education provider, Australian College of Vocational Studies ([02474E] trading as Vocational Study Australia), had closed.  She informed the Tribunal in her oral evidence that an agent has made contact with another school she can enrol in and will inform her the starting date of the course at the new school.  The applicant was asked which school and said Sydney Business School and Technology.  The applicant provided no documentary evidence that indicates enrolment at a new school to be imminent or in progress.  She provided no documentary evidence of an offer of enrolment in a course of study.

14. The applicant’s oral evidence was that her former education provider, Australian College of Vocational Studies, closed, she thinks some time in April 2018 and that she was informed of this by her agent the day before the Tribunal hearing.  The applicant said she was due to start a Diploma of Business with this education provider.  A COE is on the Tribunal file confirming a start date of 9 April 2018.  The applicant said that around 9 April 2018, she was sent a letter informing her that the start date for the course would be pushed back and that she should come into the college on Tuesday 16 April 2018.  She said she went to college on that day but could not gain access to the relevant floor in the building and was subsequently told by her agent that the college had closed due to bankruptcy.  The Tribunal accepts on the face of it that the education provider, [02474E], has closed and is no longer registered.

15. It was put to the applicant that the Tribunal had COE’s for the Diploma and Advanced Diploma of Business, [087297C] and [087468M], with the now closed education provider starting on 9 April 2018 and finishing in 2020.  She was asked if she was saying that the COE’s are no longer in force and confirmed that is the case and confirmed that she is not currently enrolled in a course of study.  The Tribunal has relied on her evidence that she is not enrolled in a course of study and that the COE’s that the Tribunal has are no longer valid.

16. The applicant, prior to the hearing, did not inform the Tribunal about any of these matters, nor did she request a postponement of her hearing.  The applicant provided documents to the Tribunal on the day of the hearing.  She did not request more time to provide additional documents after the hearing.

17. At the beginning of the hearing, the Tribunal informed the applicant that it would be considering the Genuine Temporary Entrant criteria and also whether she is enrolled in a course of study because it is a requirement that she be enrolled in a course of study to be granted a student visa.

18. At the end of her hearing, the applicant was asked if she was sure she had provided all documents she wished to in support of her application and for the Tribunal to consider when reviewing her matter and said she had.

19. The Tribunal considers it reasonable to think that if the applicant had advice or confirmation from her agent that she is enrolled, or will be enrolled, in a replacement course of study or has an offer of enrolment in a course of study, that some documentary evidence of this might have been provided to corroborate the claim.  The Tribunal’s view, having considered all relevant facts and matters, is that the applicant is not enrolled in a course of study and does not have an offer of enrolment in a course of study at the time of this decision.

20. Accordingly, cl.500.211 is not met.

21. All primary criteria for a subclass 500 visa must be met at the time a decision is made on the application.  As the applicant does not meet cl.500.211, it is not necessary for the Tribunal to proceed to make findings against the other cl.500.2 criteria.

22. 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

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

    Jennifer Cripps Watts
    Member