Saputra (Migration)

[2018] AATA 5095

Saputra (Migration) [2018] AATA 5095 (4 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gerri Saputra

CASE NUMBER:  1701429

HOME AFFAIRS REFERENCE(S):           BCC2016/2819471

MEMBER:Wendy Banfield

DATE:4 September 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 04 September 2018 at 7:13pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa –genuine temporary entrant criterion – not enrolled to study at the time of the hearing – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.111, 500.211, 500.212, 500.218
Education Services for Overseas Students Act 2000

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 11 January 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 25 August 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 it was determined the genuine temporary entrant criteria had not been met.

4. Background

5. The applicant is a citizen of Indonesia and is currently 30 years old. He came to Australia on 31 May 2013 as the holder of a Subclass 573 visa to study a Bachelor of Business Management. Since his arrival, the applicant has completed courses in English, Business, Management and in Screen and Media. He did not study the Bachelor degree for which the visa was granted and at the time of the hearing, was not enrolled to study.

6. The applicant appeared before the Tribunal on 9 March 2018 to give evidence and present arguments.

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

   The hearing

8. The applicant said he came to Australia in 2013 to undertake a Bachelor of Business Management. Prior to arriving in Australia, the applicant said he was working in his family business. He said he decided to study in Australia because it was his family’s dream for him to study abroad. Regarding the Bachelor of Business, the applicant said he began the course but did not finish and instead went to an Advanced Diploma, then changed his studies. According to the applicant he was meant to complete a Diploma, Advanced Diploma then Bachelor’s but he only finished the Diplomas.

9. The applicant said he then changed course and studied a Certificate IV in Screen and Media. He said he did not find anything useful in his business courses and thought he should gain skills in a technology field.  The applicant had enrolled in a Diploma of Screen and Media but from 2017 he did not continue because his visa application was rejected. He said at the time, his family’s economic situation was also not good and he did not want to commit to the course if he had to return home.

10. According to the applicant he is working as a part-time cleaner while holding a Bridging Visa. He said he is waiting to see if his family can obtain a bank loan so he can finish his studies.  The applicant said he does not have family in Australia and all his immediate family are living in Indonesia.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 an approved course of study as required for the grant of a student visa.

13. 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.

14. ‘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.

15. On 13 February 2018 the applicant was invited to attend a hearing scheduled for 9 March 2018. The invitation asked the applicant to provide a copy of a current Certificate of Enrolment (COE) or other documents that show he is currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994. The applicant was advised that a COE is required for the grant of a student visa. The applicant did not submit a COE as requested.

16. At the Tribunal hearing on 9 March 2018 the applicant was advised that in order to be eligible for a student visa, he must be enrolled in an approved course of study at the time of decision. The applicant did not provide evidence of enrolment or other documents that show he is enrolled.

17. During the hearing the applicant conceded he had been studying at the time of application, but ceased once his visa was refused. The applicant explained that his family’s financial situation was not good at the time and he did not want to make the financial commitment if he was required to leave Australia. At the time of the hearing, the applicant said he was hoping his family would be able to support him financially by obtaining a bank loan and he was waiting to hear from them in that regard. The applicant has not provided or COE or other evidence of enrolment since the date of the hearing.

18. 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.

19. 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

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

    Wendy Banfield
    Member