Supracoyo (Migration)

[2020] AATA 5003

Supracoyo (Migration) [2020] AATA 5003 (28 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Iwan Dwi Supracoyo
Mrs Riana Dinar Mandagi
Ms Diandra Farras Putri Supracoyo

CASE NUMBER:  1911039

DIBP REFERENCE(S):  BCC2019/1012078

MEMBER:Amanda Upton

DATE AND TIME OF

ORAL DECISION AND REASONS:         28 October 2020 at 10:34 am (VIC time)

DATE OF WRITTEN RECORD:                23 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 23 November 2020 at 9:49am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no current enrolment – refusal and application for review does not prevent enrolment and study – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.111, 500.211, 500.212, 500.311

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 18 April 2019 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 28 October 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in case number 1911039.  The applicant’s name is Mr Iwan Dwi Supracoyo. 

4. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 April 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under section 65 of the Migration Act 1958.

5. You applied for the visa on 28 February 2019.  At the time of the application class TU contained two subclasses, a student and a student guardian subclass.  You applied for the visa to undertake study in Australia.  You do not claim to meet the criteria for a student guardian visa.

6. The delegate in this case refused to grant the visa on the basis that the applicant, you did not satisfy the requirements of clause 500.212 of schedule 2 to the Migration Regulations because the delegate was not satisfied that you were a genuine student who intends genuinely to stay in Australia temporarily.

7. You have appeared today before the Tribunal to give evidence and present arguments.  You have been assisted in relation to the review by your registered migration agent although they do not appear with you today.  The Tribunal hearing was conducted with the assistance of an interpreter.

8. While the issue before the delegate was whether you are a genuine temporary entrant, the issue before the Tribunal now is whether at the time of this decision you meet the enrolment requirements for a student visa.

9. The criteria for a subclass 500 student visa are set out in part 500 of schedule to the Regulations and the primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.  The other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

10. The issue in the present case is whether the applicant is enrolled in a course of study as required for the grant of a student visa.  Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study.  The applicant does not claim to meet any of the alternative criteria in clause 500.211. 

11. A course of study is relevantly defined in clause 500.111 of the Regulations as a fulltime registered course. Registered course is defined in the Regulations as 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 to provide the course to overseas students.

12. On 13 October 2020 a written invitation to attend the hearing today was sent to you.  In that invitation you were requested to provide evidence of enrolment in an approved course of study to the Tribunal at least seven days before the scheduled date of the hearing.  Such evidence has not been provided.

13. At the hearing today you were again asked whether or not you were enrolled in a current course of study and if you had a confirmation of enrolment for that.  You have confirmed to the Tribunal that you do not have a current enrolment in registered course of study, that you were last enrolled in a course of study when you finished your Advanced Diploma of Marketing and Communication in December 2018.

14. You further confirmed that you have not been enrolled in a course of study for a period of over 18 months.  You have provided an explanation to the Tribunal for this as being that your visa was refused, and it took a period of time before the matter was to come before the Tribunal.  As indicated to you, the refusal and the appeal does not prevent you from enrolling in a course of study during that period of time.

15. Accordingly, there is no evidence before the Tribunal that you are now enrolled in any course of study, therefore the Tribunal is not satisfied that at the time of this decision you are enrolled in a course of study and clause 500.211 accordingly 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.

17. The applicant does not claim to meet the criteria for a student guardian visa and accordingly the decision under review must be affirmed as the primary applicant is found not to meet clause 500.211. 

18. The dependent applicants do not satisfy clause 500.311 and accordingly no further inquiry is required with regard to the dependent applicants.

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

    DECISION

20. The Tribunal affirms the decisions under review.

    Amanda Upton
    Member