Sumadi (Migration)

[2020] AATA 5657

Sumadi (Migration) [2020] AATA 5657 (23 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jeremy Satria Sumadi

CASE NUMBER:  1837487

HOME AFFAIRS REFERENCE(S):          BCC2018/1067804

MEMBER:Gabrielle Cullen

DATE:23 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 23 September 2020 at 1:06pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –genuine temporary entrant criterion not met –no evidence of current enrolment – no current confirmation of enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
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 5 December 2018 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 6 March 2018. 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. In his application the applicant submitted a Confirmation of Enrolment (COE) to study a Certificate IV in Marketing and Communication from 9 April 2018 to 7 April 2019.

4. On 5 December 2018 the delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.211 of Schedule 2 to the Regulations on the basis that he is not enrolled in a course of study. The delegate noted that on 15 October 2018 the applicant’s enrolment in the Certificate IV in Marketing and Communication was cancelled for unsatisfactory course progress.

5. On 20 December 2018 the applicant lodged an appeal to the Tribunal and attached the decision of the Department.

6. On 24 July 2020 the Tribunal wrote to the applicant and invited him to attend a hearing on  23 September 2020. The letter, among other matters, requested the applicant provide a current Confirmation of Enrolment (COE) or other documents that show he is currently enrolled in a course of study as defined in cl.500.211 and as required by cl.500.211(a). It noted that this is required for the grant of a student visa.

7. The applicant appeared before the Tribunal on 23 September 2020 to give evidence and present arguments. His education agent appeared as a witness. He was assisted with an interpreter in the Indonesian and English languages although he indicated that he only required the interrupter if he did not understand something.

8. The Tribunal raised with the applicant that the matter before it is whether he meets the enrolment criteria as required by cl.500.211 which is required for the grant of a student visa.

9. The applicant advised that he was not currently enrolled. Via the process outlined in s.359AA the Tribunal raised with him that the PRISMS record indicates that he is not currently enrolled, and enrolment ceased on 15 October 2018 in the Certificate IV in Marketing and Communication when it was cancelled for unsatisfactory course progress. The Tribunal advised that were it to rely on this information it would lead it to find he is not entitled to the grant of a student visa. The applicant chose to comment or respond orally at hearing. He confirmed he was not currently enrolled. His education agent advised she had nothing to add.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

12. 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.

13. ‘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.

14. The Tribunal raised with the applicant in writing and orally at hearing the requirement of enrolment for the grant of a student visa and referred to cl. 500.211. It has considered the response of the applicant that he is not enrolled. The evidence from the applicant and the PRISMS record, raised with the applicant via s.359AA, indicates that the applicant is not currently enrolled in a course of study and ceased enrolment on 15 October 2018. No evidence has been provided that he is currently enrolled in any course of study.

15. Therefore, on the evidence before it, 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.

16. 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

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

    Gabrielle Cullen
    Member