Timilsina Sapkota (Migration)

[2018] AATA 602

Timilsina Sapkota (Migration) [2018] AATA 602 (8 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ashma Timilsina Sapkota
Mr Pradip Sapkota
Miss Arpita Sapkota

CASE NUMBER:  1700842

DIBP REFERENCE(S):  BCC2016/2403196

MEMBER:Jennifer Cripps Watts

DATE:8 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 08 March 2018 at 1:40pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Requirement to be enrolled in registered course – Applicant not enrolled at time of decision – Applicant did not attend hearing – Applicant departed Australia

LEGISLATION
Education Services for Overseas Students Act 2000, Div 3 Pt 2
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211(a), 500.212

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 Immigration on 13 January 2017 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 19 July 2016. 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 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 is a genuine applicant for entry and stay as a student.

4. The visa that is the subject of this review was refused on 13 January 2017.  The applicant applied for review by this Tribunal on 17 January 2017, within time, and provided the Tribunal with a copy of the Department’s decision to refuse her student visa.  The applicant’s matter was constituted to this member and, on 7 February 2018, the Tribunal sent the applicant a written invitation to attend her hearing scheduled on 8 March 2018.   

5. The invitation to the hearing also included information relating to what types of evidence and statements the applicant should consider providing to the Tribunal before her hearing, specifically addressing the issue of whether she “...is a genuine applicant for entry and stay as a student by referring to Direction No.69.”  The Tribunal attached a copy of an extract from the Migration Act 1958, Direction Number 69 – Assessing the Genuine Temporary Entrant criterion for Student Visa and Student Guardian Visa Applications to the invitation, for her ease of reference.

6. The applicant was informed she should provide a copy of her current Confirmation of Enrolment (COE).  The applicant did not respond to the hearing invitation or provide any documents in support of her application.  SMS hearing reminders were sent to the applicant on 1 and 7 March 2018, but failed. 

7. The applicant did not attend her hearing.  She did not communicate with the Tribunal to explain why she did not attend her hearing and at no time asked for a postponement of the hearing.  A Department movement check done by the Tribunal, at 10:21am on the day of the hearing, 8 March 2018, shows that the applicant departed Australia on 6 December 2017.  At no time before or after departure did the applicant notify the Tribunal of any change to her circumstances.

8. In the hearing invitation sent on 7 February 2018, it is clearly stated that if the applicant does not attend the scheduled hearing that the Tribunal may make a decision on the review without taking any further action to allow or enable her to appear or that the case may be dismissed.  In the circumstances, the Tribunal finds the applicant has waived her right to a hearing.

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. All criteria must be satisfied at the time a decision is made on the application. The visas were refused because the delegate was not satisfied the applicant met cl.500.212, commonly referred to as the Genuine Temporary Entrant criterion. However, the Tribunal has first turned its mind to whether, at the time of this decision, she meets criterion 500.211.

    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 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.

13. The Tribunal has no information before it that indicates the applicant is enrolled in a course of study.  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.

14. 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

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

    Jennifer Cripps Watts
    Member