Ubalde (Migration)

[2020] AATA 4713

Ubalde (Migration) [2020] AATA 4713 (16 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jumar Ubalde
Mrs Alona Ubalde

CASE NUMBER:  1901608

DIBP REFERENCE(S):  BCC2018/5024982

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         16 October 2020 at 9:51 am (VIC time)

DATE OF WRITTEN RECORD:                11 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 11 November 2020 at 1:45pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – not currently enrolled in registered course – second applicant returned to home country – first applicant waiting for end of travel restrictions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.111, 500.211, 500.212, 500.311

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 15 January 2019 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 16 October 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in case number 19011608.  The applicant’s name is Mr Ubalde.  The secondary applicant in this application is Mr Ubalde’s wife. 

4. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 January 2019, to refuse to grant the applicant a Student (Temporary) (Class TU) visa, under section 65 of the Migration Act 1958. The applicant applied for the visa on 12 November 2018 to undertake study in Australia. This case involves a subclass 500 student visa application.

5. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of schedule 2 to the Migration Regulations 1994, because the delegate was not satisfied that the applicant was a genuine student, who intended genuinely to stay in Australia temporarily.

6. On 16 October 2020, the primary applicant appeared before the tribunal today, to give evidence and present arguments.  The primary applicant informed the tribunal that his wife had returned home to his home country some months ago and on that basis, she is not appearing before the tribunal today. 

7. While the issue before the delegate was whether the applicant was a genuine temporary entrant, the issue before the tribunal now is whether, at the time of this decision, the primary applicant meets the enrolment requirements for a student visa.

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 clause 500.211 to clause 500.218 must be satisfied by the primary applicant. Other members of the family unit, in this case, the primary applicant’s wife, need only satisfy the secondary criteria.

9. The issue in the present case is whether the applicant is enrolled in a course of study, as required for the grant of a student visa.  Clause 500.211 relevantly requires that at the time of this decision, the applicant is enrolled in a course of study.  “Course of study” is relevantly defined in clause 500.111 of the Regulations as a full-time registered course.  “Registered course”, is defined in the Regulations as:

10. A course of education or training provided by an institution, body or person, who is registered under the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

11. On 1 October 2020, a written invitation to attend today’s hearing was sent to the applicant.  In that invitation, the applicant was requested to provide evidence of enrolment in a full-time registered course to the tribunal, at least seven days before the hearing.  Such evidence has not been provided. 

12. At the hearing, the tribunal asked the applicant whether he is currently enrolled in a registered course.  The applicant candidly informed the tribunal that he is not currently enrolled in a registered course and that he is currently waiting for the borders in his home country, the Philippines, to open, so that he may return home. 

13. The tribunal observed that there is a confirmation of enrolment in an Advanced Diploma of Leadership and Management on the tribunal file.  That document indicates that this course concluded on 10 May 2020.

14. In view of the evidence of the primary applicant, the tribunal is satisfied that the applicant is not currently enrolled in any course of study as at the time of this decision.  Accordingly, the tribunal is satisfied that clause 500.211 is not met by the applicant.

15. Given the above findings, the tribunal finds that the criteria for the grant of a subclass 500 student visa are not met by the primary applicant. 

16. In view of the abovementioned findings, the secondary applicant does not meet clause 500.311 and no further enquiry is required with regards to the secondary applicant.  For these reasons, the tribunal finds that the decision under review must be affirmed. 

17. The tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas. 

18. This decision is made at 9.51 am on 16 October 2020.  This now concludes the hearing, and the parties are free to leave.

    DECISION

19. The Tribunal affirms the decisions under review.

    Vanessa Plain
    Member