Stevenson (Migration)

[2022] AATA 1065

Stevenson (Migration) [2022] AATA 1065 (21 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Carla Anne Stevenson

REPRESENTATIVE:  Mrs Maggie Taaffe

CASE NUMBER:  2118829

HOME AFFAIRS REFERENCE(S):          BCC2020/1637563

MEMBER:Mark Bishop

DATE:21 March 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 21 March 2022 at 3:30pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – no evidence of current enrolment – decision under review affirmed     

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 362, 379
Migration Regulations 1994, Schedule 2 cls 500.111, 500.211; r 1.03

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 23 November 2021 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 May 2020. 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.500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant despite repeated request failed to provide proof of enrolment in a course of study.

4. On 15 December 2021 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 21 March 2022. The Tribunal advised the applicant the hearing would be contacted by mobile phone. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. On 18 March 2022 the Tribunal sent system generated SMS reminder notices to the applicant’s phone number.

5. It is the practice of the Tribunal to conduct “preliminaries” prior to the commencement of the hearing. These preliminaries are a courtesy to review applicants and basically explain the process of the hearing which will commence at a later time. These “preliminaries” are not part of the hearing and the presiding member does not attend during this process as it is conducted by administrative staff of the Tribunal. The Tribunal contacted the applicant on numerous occasions immediately prior to 3.00pm on the day of the scheduled review hearing. There was no response to any of these phone calls. The Tribunal also attempted to contact the applicant by phone to commence the hearing and the applicant did not respond to the phone call (for full detail see Case Note number 4). Case Note number 4 sets out the following: “Calls made to Applicant at 1.45pm,1.55pm and last call at 3.02pm and 3 messages left on voicemail of Applicant's mobile [number specified]”.

6. The applicant did not appear before the Tribunal.

7. The review applicant did not appear before the Tribunal for the phone hearing on the day and at the scheduled time. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(4) and the invitation has not been returned to sender. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

8. The applicant provided a copy of the decision record to the Tribunal. The applicant was assisted in relation to the review.

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 proof of current enrolment in a course of study.

    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 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.

13. In her Application for a Student visa dated 28 May 2020 the applicant declared she held a current COE numbered BSB51918 in a Diploma of Leadership and Management with a course finish date of 16 July 2021. On 20 May 2020 the applicant provided a copy of a letter of offer from Australian City Design College in a Diploma of Leadership and Management with a course end date of 16 July 2021. A letter of offer is not proof of enrolment in a course of study or a current COE. As the course date for enrolment in the Diploma of Leadership and Management has now finished or ended the Tribunal is unable to give this COE or letter of offer any weight.

14. On 15 December 2021 the Tribunal wrote to the applicant and requested she provide proof of current enrolment in a course of study within 14 days. The applicant did not respond to this request.

15. The applicant did not provide a copy of a current COE to the Tribunal.

16. 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.

17. 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).

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

    DECISION

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

    Mark Bishop

    Member