Su (Migration)

[2021] AATA 3204

Su (Migration) [2021] AATA 3204 (4 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Diya Su
Mr Yaowei LI

CASE NUMBER:  1936306

HOME AFFAIRS REFERENCE(S):          BCC2019/5646863

MEMBER:Michael Biviano

DATE:4 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 4 August 2021 at 5:25 pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa –genuine temporary entrant criterion not met– not currently enrolled in a registered course of study –no current confirmation of enrolment– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.311
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 17 December 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 8 November 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas on the basis that the applicant did not satisfy the requirements of cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the reason that she was not a genuine applicant for entry and stay as a student because she did not intend to stay in Australia temporarily.

4. As the delegate found that applicant did not meet the requirements of cl 500.212(a) of Schedule 2 to the Regulations, then the secondary applicant did not meet the requirements of cl 500.311 of Schedule 2 to the Regulations and they did not meet the criteria for the grant of a student visa.

5. The applicants were assisted in relation to the review by their registered migration agent.

6. On 30 June 2021, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting the applicant to provide information about her entry and stay in Australia as a student in writing (30 June Letter). The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by 14 July 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. On 13 July 2021, the applicant submitted documentation in response, confirming that she had completed a Diploma of Project Management at  Australia  National Institute of Business and Technology on 26 October 2020.

7. On 22 July 2021, the Tribunal wrote to the applicant inviting her to attend a hearing of her application (Invitation). On 27 July 2021, the applicant in the response to the Invitation confirmed that she would not participate in the hearing and she consented to the Tribunal deciding the review without a hearing. The email from the applicant’s migration agent enclosing the response to the Invitation dated 27 July 2021 stated, ‘The clients decided not to attend the hearing and agreed to accept decision on paper’. The Tribunal is satisfied that the necessary consent has been given under s 360(2)(b) of the Act and that, pursuant to s 360(3), the applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

8. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

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 was whether the applicant is a genuine applicant for entry and stay as a student, but that changed to whether the applicant was enrolled in a registered course of study at the date of the decision.

    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, to provide the course to overseas students.

13. The applicant is a 31-year-old Chinese national who had previously studied in Australia on a student visa and obtained a Bachelor of Business and Commerce from Monash University in December 2013 and a Master of Professional Accounting from Deakin University in November 2015.  

14. The Decision Record of the delegate of the Department of Home Affairs dated 17 December 2019, which was provided to the Tribunal by the applicant, confirms the applicant made the current application for a Student (Class TU) (Subclass 500) visa on 8 November 2019 (Decision Record). At the time of the decision being made in the Decision Record, the applicant had applied to undertake a Diploma of Project Management at Australian National Institute of Business and Technology (ANIBT).

15. The applicant submitted a Confirmation of Enrolment Certificate (COE) numbered B023B260 to the delegate, which confirmed that she was studying a Diploma of Project Management  at ANIBT from 14 October 2019 to 9 October 2020. No further COE was provided to the delegate or the Tribunal.

16. The Tribunal wrote to the applicant in the 30 June letter pursuant to s 359(2) of the Act, inviting the applicant to provide information about the courses of study she was undertaking and about her entry and stay in Australia as a student in writing.  The invitation stated:

    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 the main applicant is undertaking and their entry and stay in Australia as a student.

17. On 13 July 2021, the applicant submitted to the Tribunal confirmation from ANIBT that she had obtained the Diploma of Project Management qualification on 26 October 2020, submitting the Diploma, with Academic Transcript and Statement of Completion. She did not submit a new COE or any evidence of any new course of study she was undertaking.

18. The Tribunal sent the Invitation for the applicants to attend a hearing in this matter.  The letter relevantly provided at page 2:

    In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:

    1. A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.

19. The letter further stated:

    We may also assess whether you are enrolled in a registered course of study.  Please note that not being enrolled in a registered course of study may be a reason, or 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 delegate.

20. Prior to the making of this decision, the applicant has not provided any details of any current confirmation of enrolment in a course of study, and has not provided to the Tribunal any current confirmation of enrolment certificate or any enrolment documents that confirm she has been enrolled in a course of study since completing the Diploma of Project Management in October 2020.

21. Therefore, in those circumstances, 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.

22. 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.

23. Further, as the applicant did not meet the requirements of cl 500.211 of Schedule 2 to the Regulations, then the secondary applicant did not meet the requirements of cl 500.311 of Schedule 2 to the Regulations and he did not meet the criteria for the grant of a student visa.

    DECISION

24. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Michael Biviano
    Member