Torres Galdino De Lima (Migration)

[2018] AATA 4557

Torres Galdino De Lima (Migration) [2018] AATA 4557 (28 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Maria Auxiliadora Torres Galdino De Lima

CASE NUMBER:  1710465

HOME AFFAIRS REFERENCE(S):           BCC2017/844474

MEMBER:Wendy Banfield

DATE:28 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 28 August 2018 at 11:52am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – not enrolled in an approved course at the time of decision – Decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, r.1.03, Schedule 2, cls 500.111, 500.211, 500.212, 500.218

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 and Border Protection on 26 April 2017 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 3 March 2017. 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 it was determined the genuine temporary entrant criteria had not been met.

   Background

4. The applicant is a citizen of Brazil and is currently 50 years old. She came to Australia on 12 April 2016 as the holder of a Subclass 600 Student Visa. The applicant applied for a student visa with the intention of studying English. She has a hairdressing business in her home country and claimed she wished to improve her business by developing her English language ability.

5. The applicant has her husband, parents and siblings in Brazil while her daughter is in Australia studying. The applicant had been enrolled in a General English course but was not enrolled to study at the time of decision in this case.

6. The applicant appeared before the Tribunal on 21 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 enrolled in an approved course of study as required for the grant of a student visa.

9. 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.

10. ‘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.

11. On 31 July 2018 the applicant was invited to attend a hearing scheduled for 21 August 2018. The invitation asked the applicant to provide a copy of a current Certificate of Enrolment (COE) or other documents that show she is currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994. The applicant was advised that a COE is required for the grant of a student visa. The applicant did not submit a COE as requested.

12. At the Tribunal hearing on 21 August 2018 the applicant was advised that in order to be eligible for a student visa, she must be enrolled in an approved course of study at the time of decision. The applicant did not provide evidence of enrolment or other documents that show she is enrolled in an approved course of study.

13. During the hearing the applicant explained that she originally came to Australia as a visitor to be with her daughter who is a student here. She decided it would be a good opportunity to learn English, however, she said the English course she began was too advanced. The applicant said she has a hairdressing business close to the international airport in Sao Paulo and English will be useful to her. According to the applicant’s evidence, she was unable to continue to the course and after her visa was refused, she attempted to study with a private tutor.

14. The applicant said that although she initially came to Australia as a visitor, she changed her plans after spending time with her daughter. The applicant declared she had not been given adequate advice and the course she enrolled to take was too advanced. She said she still wants to learn English and would like to be able to stay for one year.

15. The Tribunal has considered the evidence provided by the applicant regarding her reasons for applying for a student visa and wanting to study English. As was put to the applicant during the hearing, since she is not enrolled in an approved course at the time of decision, she is unable to meet a threshold requirement for the grant of a student visa.

16. 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.

17. 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

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

    Wendy Banfield
    Member