Shrestha (Migration)

[2022] AATA 1576

Shrestha (Migration) [2022] AATA 1576 (22 February 2022)

.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Samikshya Shrestha

CASE NUMBER:  2003591

HOME AFFAIRS REFERENCE(S):          BCC2019/4283239

MEMBER:Mark Bishop

DATE:22 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 22 February 2022 at 2:52pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant was not a genuine applicant for entry and stay as a student –not currently enrolled in a registered course of study – no current confirmation of enrolment– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, r 1.03, Schedule 2, cl 500.211

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 Home Affairs on 4 February 2020 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 28 August 2019. 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)

4. The applicant consented in writing to the Tribunal resolving the review application on the papers.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 proof of enrolment in an approved course of study.

   Enrolment (cl 500.211)

7. 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.

8. ‘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.

   Significance of Enrolment Criterion

9. Producing evidence of current enrolment is a critical first step towards obtaining a student visa. Such evidence shows that the applicant has, prior to the Tribunal making its decision, entered into a legally binding contract with a registered course provider. That contract gives rise to several significant obligations. First, it obliges the course provider to provide the applicant with a pre-determined course of education or training over a specified period. Second, it obliges the applicant to pay for the course. Third, it obliges the applicant to complete the course requirements to receive a testament from the course provider as to what the applicant has achieved by way of formal qualification. An enrolment therefore represents a present and operating commitment by the applicant to complete a course of study. It is persuasive evidence of a tangible and immediate need for a student visa.

10. An enrolment continues to be of legal significance once a student visa is issued. All student visas are subject to a condition that the visa holder remains enrolled in a registered course of study. That condition operates on a continuing basis every day the visa remains valid. If a student visa is issued to an applicant who is not enrolled in a course of study, the visa will be breached as soon as it is granted.

11. The Tribunal must therefore be presented with evidence that shows the applicant is currently enrolled in a registered course of study. Absent such evidence, a student visa cannot sensibly be grated. Indeed, in any case for a student visa, consideration of whether all other primary criteria are met, as contained in clauses 500.211-500.218 of the Regulations, is premised on the enrolment criterion in clause 500.211 first being satisfied. If clause 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.

12. Clause 500.211 provides:

    500.211 One of the following applies:

    (a) the applicant is enrolled in a course of study;

    (b) if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

    (c) if the applicant is a Foreign Affairs student—the applicant has the support of     the Foreign Minister for the grant of the visa;

    (d) if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.

13. In her application for a student visa dated 28 August 2019 the applicant declared she held a COE numbered AD531765 and did not hold evidence of her intended study in Australia other than a COE. In her GTE statement she advised she was enrolled in two hospitality management related courses with expiry date of 20 June 2021. The applicant did not provide any further proof of enrolment to the Department. There is no evidence before the Tribunal the applicant enrolled in any course of study with an expiry date post 20 June 2021. In a written statement dated 3 December 2021 the applicant advised the Tribunal she was not enrolled in a registered course of study in the period from April 2020 until December 2021.

14. The evidence before the Tribunal is that the applicant has not been enrolled in a course of study from April 2020 (see paragraph 19 below).

15. On 22 October 2021 the Tribunal wrote to the applicant under s.359(2) of the Act and advised as follows:

    As you applied for the visa on the basis of 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 and stay as a student.

    Accordingly, you will need to provide sufficient information 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 you are undertaking and your entry and stay in Australia as a student.

16. The Tribunal is of the view the applicant was in receipt of written advice that the Tribunal would consider enrolment in a course of study to be a determinative issue.

17. In a written response to the above Request for Information dated 3 December 2021 the applicant advised she did not have a current Confirmation of Enrolment (CoE) in a registered course of study.

18. In a further written response to a statement from the Tribunal that “not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker” the applicant declined to provide any information as to current enrolment in an approved course of study. The applicant went onto advise the Tribunal she “…had not been enrolled in a registered course of study at all times while in Australia as the holder of a student visa…”.

19. In a written statement dated 3 December 2021 the applicant advised the Tribunal she was not enrolled in a registered course of study in the period from April 2020 until December 2021.

20. The applicant did not provide a copy of a current COE or other form of proof of enrolment in a registered course of study to the Tribunal.

21. Despite multiple requests the applicant has not provided a copy of a current COE or any form of proof of enrolment in an approved course to the Tribunal.

22. Crucially however, the Tribunal does not have before it current evidence that the review applicant is presently enrolled in a course of study as required by cl.500.211(a). It follows that the Tribunal is not satisfied that the review applicant is presently enrolled in a course of study as required by cl.500.211(a).

23. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Mark Bishop

    Member