SHRESTHA (Migration)

[2019] AATA 5272

SHRESTHA (Migration) [2019] AATA 5272 (6 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms SITA SHRESTHA

CASE NUMBER:  1720718

HOME AFFAIRS REFERENCE(S):          BCC2017/1031698

MEMBER:Wendy Banfield

DATE:6 August 2019

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 2019 at 1:55pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – evidence of enrolment at time of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 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 16 August 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 15 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.

   Background

3. The applicant is a citizen of Nepal and is currently 25 years old. She came to Australia on 24 September 2013 as the holder of a Subclass 573 Student Visa. Since her arrival the applicant has completed courses in Accounting, English and Business.

4. 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.

5. The applicant appeared before the Tribunal on 5 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

6. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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..

9. 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.

10. ‘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.

11. On 16 July 2019 the applicant was invited to attend a hearing scheduled for 5 August 2019. The invitation asked the applicant to provide a copy of a current Confirmation of Enrolment (COE) or other documents that show she 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. At the Tribunal hearing on 5 August 2019 the applicant was advised that in order to be eligible for a student visa, she must be enrolled in an approved course of study at the time of decision.

12. In the Tribunal’s hearing introduction the applicant was advised that in order to be eligible for a Student Visa, she must be enrolled in an approved course of study at the time of decision. The applicant gave evidence that she had been studying a Certificate IV in Business Administration but she entered into a relationship, became pregnant and has since had a baby. According to the applicant she ceased studying during her pregnancy. She said the baby has been left in the care of relatives in Nepal. In the meantime, the applicant’s visa expired and she had been waiting to get a visa again. The applicant claimed she still wants to study a Bachelor degree here and has been seeking advice about bringing her child back to Australia.

13. The applicant advised her partner has also been refused a Student Visa and has applied to the Tribunal for review. She said if either of them is granted a visa, the other will apply to be a dependent.

14. The Tribunal explained again to the applicant that in order to be granted a Student Visa, she must be currently enrolled to study. The applicant said she understood but confirmed she is not enrolled. 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.

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 applicant a Student (Temporary) (Class TU) visa.

    Wendy Banfield
    Member