TREEPECHSAMAKOON (Migration)

[2018] AATA 4488

TREEPECHSAMAKOON (Migration) [2018] AATA 4488 (2 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Treeracha TREEPECHSAMAKOON

CASE NUMBER:  1711695

HOME AFFAIRS REFERENCE(S):           BCC2017/976117

MEMBER:Wendy Banfield

DATE:2 October 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 02 October 2018 at 1:56pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment in a course – no COE – no evidence of enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2 cls 500.111, 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 and Border Protection on 15 May 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 13 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 Thailand and is currently 38 years old. She came to Australia on 24 November 2012 as the holder of a Subclass 573 Student Visa to study a Master of Business Administration. Since arriving in Australia the applicant has completed courses in English Language and Design. At the time of the hearing and of the decision in this case, the applicant was not enrolled in a course of study.

5. The applicant appeared before the Tribunal on 17 September 2018 to give evidence and present arguments.

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

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 21 August 2018 the applicant was invited to attend a hearing scheduled for 17 September 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.

11. At the Tribunal hearing on 17 September 2018the 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.

12. During the hearing the applicant explained her circumstances in Australia. She said she had obtained an Associate Degree in Design which was not sufficient and she wanted to continue studying as it is part of her dream. The applicant declared she had been depressed when she received the Department’s refusal of her visa application and decided to seek a review of the decision. According to the applicant she did not continue studying as she thought the review process would only take a few months. The applicant acknowledged she was not enrolled to study and when advised by the Tribunal that enrolment was a requirement before a visa could be granted she indicated she understood. The Tribunal told the applicant that her application could not be remitted to the Department for further consideration because she was not enrolled to study and the applicant said she believed she had to try and have her visa granted.

13. The applicant has not provided any evidence of enrolment post-hearing and 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.

    Wendy Banfield
    Member