Shu (Migration)

[2019] AATA 1926

Shu (Migration) [2019] AATA 1926 (11 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jiewei Shu

CASE NUMBER:  1714698

HOME AFFAIRS REFERENCE(S):           BCC2017/983490

MEMBER:Wendy Banfield

DATE:11 June 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 11 June 2019 at 6:39pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class Tu) – Subclass 500 (Student) – applicant did not satisfy requirements – must be enrolled in an approved course of study – provided letter of offer – no evidence applicant accepted offer or is currently enrolled – decision under review affirmed

LEGISLATION

Education Services for Overseas Students Act 2000 Div 3 Part 2
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 500.111, 500.211-500.218, r 1.03

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 4 July 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 13 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 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. The applicant appeared before the Tribunal on 7 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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 whether the applicant is enrolled in an approved course of study as required for the grant of a student visa.

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 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.

9. On 5 December 2018 the applicant was invited to attend a hearing scheduled for 7 January 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. The applicant did not provide a copy of a current COE prior to or at the time of the hearing.

10. At the hearing on 7 January 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. The applicant requested time post-hearing to provide a copy of a current COE and the Tribunal agreed to a two week time period. On 12 January 2019 the applicant’s representative asked for additional time, until 28 January to submit the relevant documents which the Tribunal also agreed to. On 22 January 2019 the applicant’s representative provided a Letter of Offer from the University of Wollongong for a Master of Nursing in the name of the applicant. The representative advised the applicant was in the process of paying for tuition and a COE would be provided when it became available. At the time of the decision in this case, a current COE had not been provided. There is no evidence before the Tribunal to indicate that the applicant accepted the offer from Wollongong University or is currently enrolled in any course of study.

11. 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.

12. 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

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

    Wendy Banfield
    Member