Thapaliya (Migration)

[2020] AATA 6101

Thapaliya (Migration) [2020] AATA 6101 (14 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Usha Thapaliya

CASE NUMBER:  1918248

HOME AFFAIRS REFERENCE(S):          BCC2019/1814372

MEMBER:Peter Haag

DATE:14 December 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 14 December 2020 at 8:37pm

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

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212

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 July 2019 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 12 April 2019. 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 the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 25 November 2020 to give evidence and present arguments.

5. The applicant was assisted in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 currently enrolled in a registered course of study.

   Enrolment (cl.500.211)

8. 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.

9. ‘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.

10. On 22 May 2020, prior to the review hearing, the applicant responded in writing to the Tribunal’s s.359(2) request to provide certain Student visa information. The applicant’s response comprises part of the Tribunal file. In her response the applicant claimed to have a current Confirmation of Enrolment (CoE) in a registered course of study.  That claim was contradicted by the CoE that accompanied the applicant’s s.359(2) response.

11. The relevant CoE was filed on 22 May 2020 and it comprises part of the Tribunal file. The CoE was issued by Greenwich English College on 11 April 2019: it is evidence the applicant enrolled on that date in the Diploma of Business starting on 13 May 2019 and ending on 8 May 2020. Taken at face value, the applicant’s enrolment in the Diploma ended on the date the course finished, and prior the date on which the s.359(2) response was received by the Tribunal on 22 May 2020; and prior to the review hearing on 25 November 2020.

12. During the hearing the Tribunal informed the applicant of the concern that she may not be enrolled in a course of study. The Tribunal’s concern was compounded by the applicant’s evidence that she had not submitted her final assessment task, which was due on 21 September 2020,[1] and that she owed tuition fees to the course provider. As the Tribunal understood the applicant’s evidence, she had completed the assessment task, but she was prevented from submitted it because she had not paid certain tuition fees, and that the fees remained unpaid.

    [1] Tribunal file: correspondence from applicant’s representative, Lesley Simons and Associates, Barristers and Solicitors.

13. There is no evidence before the Tribunal that the applicant’s enrolment in the Diploma of Business was cancelled before 8 May 2020, the finish date of the course. There is no evidence before the Tribunal that satisfies the Tribunal that the Diploma course, or the applicant’s enrolment in the course, was extended by the course provider past the finish date stated in the CoE, being 8 May 2020.

14. According to the s.359(2) response and submissions, the applicant’s study plans included completing a Bachelor of Nursing, a course provided by the Australian Catholic University (ACU), in which the applicant enrolled in January 2015. The applicant failed to complete the course. It became evident that the applicant had endeavoured unsuccessfully to reenrol in the course.

15. In oral evidence the applicant made clear that she was not currently enrolled in any nursing course. The applicant claimed in evidence to have an offer to enrol in the Bachelor of Nursing commencing in February 2020. According to the applicant’s evidence she accepted the offer but was not currently enrolled in the course.

16. The Tribunal was left concerned that the applicant was not currently enrolled in a course of study and that she did not have a current offer of enrolment in the Bachelor of Nursing.  The Tribunal was also concerned that certain evidence relevant to the applicant’s claim to be a genuine temporary entrant may be available to the applicant, but it had not been given to the Tribunal. The Tribunal informed the applicant and her representative of these concerns.

17. The Tribunal determined as a matter fairness to the applicant to grant the applicant further time to 11 December 2020 in which to provide, in addition to evidence relevant to whether the applicant is a genuine temporary entrant as a student, documentary evidence that established the applicant is currently enrolled in a course of study; and, evidence that she has a current offer of enrolment in the Bachelor of Nursing. The Tribunal informed the applicant and her representative that the Tribunal would proceed to a decision in the review shortly after 11 December 2020.

18. On 11 December 2020 the applicant’s representative provided a bundle of documents to the Tribunal. The documents do not contain a CoE or other documentary evidence, such as a letter from Greenwich English College verifying the applicant is currently enrolled in the Diploma of Business. 

19. Moreover, the bundle of documents does not contain any documentation such as a CoE that satisfies the Tribunal that the applicant is currently enrolled in any registered course of study. 

20. Furthermore, the oral evidence, information and documents before Tribunal, including the contents of the Department file, does not satisfy the Tribunal the applicant is currently enrolled in a course of study.

21. The bundle of documents received on 11 December 2020 contains an email that is addressed to the applicant and dated 26 May 2020. The author of the email is Cecilia Guerrero, International Admissions, Australian Catholic University (ACU). The correspondence makes clear the ACU gave the applicant a Provisional Offer of enrolment for February 2020, and the offer lapsed prior to 26 May 2020, the date of the email. The correspondence from Ms Guerrero invited the applicant to apply for readmission for Semester 1, 2021.  The correspondence considered in the context of the other evidence, satisfies the Tribunal the applicant in not currently enrolled at ACU in the Bachelor of Nursing and she does not have a current offer of enrolment in the course. 

22. Therefore, based on the totality of the evidence and information before the Tribunal, the Tribunal is not satisfied the applicant is enrolled in a course of study: accordingly, cl.500.211 is not met.

23. 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.

24. 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

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

    Peter Haag
    Member