TOURTOIS (Migration)

[2017] AATA 2601

TOURTOIS (Migration) [2017] AATA 2601 (29 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alexandre TOURTOIS

CASE NUMBER:  1715034

DIBP REFERENCE(S):  BCC2017/462166

MEMBER:Warren Stooke AM

DATE:29 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 29 November 2017 at 11:45am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Enrolment status not provided – Applicant did not submit further information

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958 ss 65, 359
Migration Regulations 1994 r 1.03 Schedule 2 cls 500.111, 500.211 - 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 on 26 June 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 4 February 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.500.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not confirm adequate health cover.

4. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 was initially in relation to the requirement to satisfy cl.500.215 re the provision of a confirmation of adequate health cover. This request for information has been satisfied. 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.

7. ‘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.

8. On 18 July 2017, the Tribunal wrote to the applicant seeking confirmation of the following:

   ·A copy of your current Certificate of Enrolment (CoEs) as required for the grant of a student visa;

   ·Evidence of adequate arrangements for health insurance from an approved provider during the period of your intended stay in Australia.

9. The agent acting for the applicant (Mr Li of Aus Bridge Immigration Consulting), provided a response on 18 July 2017, which included documentation satisfying:

   ·     Applicant’s current CoE with course completion date as 14 December 2017

   ·     Current OHSC with validity till 14 March 2018

   This material provided by the applicant, ostensibly satisfied the request of information sought by the Tribunal, at that point in time.

10. On 13 September 2017, the Tribunal invited the applicant pursuant to s359to comment or respond to information, as follows:

    “On 26 June 2017, you were advised of the refusal to grant a Student (Temporary)
    (Class TU) Student (subclass 500) visa.

    We are writing in relation to the application for review made by you in respect of the decision to refuse to grant a Student (Temporary) (Class TU) Student (subclass 500) visa of 26 June 2017.

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    In this regard, a request for information is made pursuant to s359 of the Migration Act
    1958, which provides as follows:

    “Tribunal may seek information

    (1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

    (2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.”

    Please note, however, that we have not made up our mind about the information.

    You are invited to provide the following information in writing:

    ·Your enrolment status, including the educational institution and course currently being undertaken. In this regard, you are invited to provide documentary evidence of a current enrolment and confirm the date of expected completion.

    This information is relevant to the review because of the requirements of the Migration Act 1958 and the need for certain criteria to be satisfied, including the course /enrolment requirements in Schedule 1 (visa application requirements), Schedule 2 (visa criteria) and Schedule 8 (visa conditions).”

11. The applicant was given until 2 October 2017 to respond to the request for information.

12. As at the date of the Tribunal’s review of this matter, there has been no response from the applicant or the applicant’s agent concerning the invitation to furnish information pertaining to the applicant’s status of enrolment.

13. 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 decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Warren Stooke AM
    Member