Vo (Migration)

[2019] AATA 5303

Vo (Migration) [2019] AATA 5303 (7 August 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Thuy Yen Vo (‘Primary Applicant’)

Nguyen Dang Khoa Luu (‘Secondary Applicant’)

Quang Vinh Luu (‘Secondary Applicant’)

Quang Minh Luu (‘Secondary Applicant’)

CASE NUMBER:  1808293

HOME AFFAIRS REFERENCE:         BCC2018/674955

MEMBER:  Dr Jason Harkess

DATE OF ORAL DECISION:                7 August 2019
DATE OF WRITTEN STATEMENT:    9 August 2019

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision not to grant

the Applicants Student (Temporary) (Class TU) (Subclass 500) visas

Statement made on 09 August 2019 at 12:56pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – evidence of enrolment at time of decision – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicants are citizens of Vietnam. They seek review of a decision made by a delegate of the Minister for Home Affairs on 22 March 2018 refusing to grant them student visas.

2. The Applicants applied for the visas on 9 February 2018. The specific type of visa they applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as being a Student (Temporary) (Class TU) (Subclass 500) visa.¹ Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of section 65 of the Migration Act 1958 (Cth) (‘the Act’). If granted, a student visa permits a non-Australian citizen to enter and remain in Australia to study full-time on a temporary basis. An applicant’s family members or guardian may also join the application so that they too are issued with visas permitting them to stay in Australia for the duration of the primary applicant’s studies.

3. In this case there are four applicants. The Primary Applicant seeks a student visa so that she can reside in Australia while undertaking a course of study. For the visa to be granted, the Primary Applicant must meet the primary criteria set out in Part 500 of Schedule 2 of the Regulations.² The Secondary Applicants seek student visas as members of the Primary Applicant’s family unit. The grant of a student visa to a secondary applicant is contingent on both the secondary applicant meeting the secondary criteria and the primary applicant meeting the primary criteria.³ If a primary applicant’s case for a student visa fails, a secondary applicant’s connected application must also fail.

4. The student visas were refused in this case because the delegate found that the Primary Applicant did not satisfy the primary criteria contained in cl 500.212 of Schedule 2 of the Regulations. The delegate was not satisfied that she was a genuine applicant for entry and stay as a student. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Tribunal by the Applicants when they lodged their review application on 26 March 2018.

HEARING OF APPLICATION

1. The Tribunal convened a hearing to consider the merits of the application on 7 August 2019. The Primary Applicant appeared at the hearing to give evidence and present arguments. The Secondary Applicants did not participate in the

1 See Migration Regulations 1994 (Cth), Sch 1, cl 1222; Sch 2, cls 500.1 to 590.612.

2 See Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

3 Migration Regulations 1994 (Cth), Sch 2, cl 500.311.

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hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

1. The Tribunal gave its decision on the review at the conclusion of the hearing at 2:11 PM on 7 August 2019. The Tribunal affirmed the decision not to grant the Applicants student visas. The following are the reasons for that decision.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Clauses 500.211 to 500.218 of Schedule 2 of the Regulations contain the primary criteria relating to the grant of Subclass 500 student visas. In this case, only cl 500.211 (the enrolment criterion) and cl 500.212 (the genuine applicant criterion) are relevant for determining the outcome of the review application.

Enrolment Criterion

1. Clause 500.211 of the Regulations requires that a student visa application be founded on evidence of the applicant being enrolled in ‘a course of study’. For the purposes of the application on review before the Tribunal, a ‘course of study’ is defined as ‘a full-time registered course of study.’ A registered course is one which has been registered in the Commonwealth Register of Institutions and Courses for Overseas Students by a registered course provider.

Importance of Current Enrolment

1. Producing evidence of a current enrolment is a critical first step towards obtaining a student visa. Such evidence shows that the applicant has already entered into a legally binding contract with a registered course provider. That contract gives rise to several significant obligations. First, it obliges the course provider to provide the applicant with a pre-determined course of education or training over a specified period. Secondly, it obliges the applicant to pay for the course. Thirdly, it obliges the applicant to complete the course requirements to receive a testament from the course provider as to what the applicant has achieved by way of formal qualification. An enrolment therefore represents a present and operating commitment by the applicant to complete a course of study. It demonstrates a tangible and immediate need for a student visa.

2. An enrolment continues to be of legal significance once a student visa is issued. All student visas are subject to a condition that the visa holder remain enrolled in a registered course of study. That condition operates on a continuing basis every day the visa remains valid. If a student visa is issued to an applicant who is not enrolled in a course of study, the visa will be breached as soon as it is granted.

3. The Tribunal must therefore be presented with evidence that shows the Primary Applicant is currently enrolled in a registered course of study. Absent such

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evidence, a student visa cannot sensibly be granted. Indeed, in any case for a student visa, consideration of whether all other primary criteria are met, as contained in cls 500.212 to 500.218, is premised on the enrolment criterion in clause 500.211 first being satisfied. If cl 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.

Primary Applicant Not Currently Enrolled

1. At the commencement of the hearing, the Tribunal inquired of the Primary Applicant as to whether she was currently enrolled in a registered course of study. In oral evidence, the Primary Applicant stated that she was not. She explained that she had completed her course last year, being a Bachelor of Nursing course. She explained to the Tribunal that she had been advised to forego applying for Graduate Workstream (Subclass 485) visa, for which she may have been eligible, pending the outcome of the review hearing before the Tribunal now in relation to her student visa application. Certainly, the Tribunal accepts that she may have received such advice, leading to the Primary Applicant to her conscious decision not to enrol in a registered course of study before the review application was heard. However, the law in this situation is clear. If there is no enrolment, there can be no student visa.

Genuine Applicant Criterion

1. In the circumstances, the question of whether the Primary Applicant meets the criteria under clause 500.211 has become determinative for the purposes of the outcome of the case now before the Tribunal. If the Primary Applicant does not meet the criteria under the clause 500.211, there is no administrative utility in the Tribunal proceeding to consider whether the genuine applicant criterion is met under clause 500.212.

Conclusion

1. The Applicants do not meet the regulatory requirements for the grant of student visas because there is no evidence that the Primary Applicant satisfies any of the criteria in clause 500.211 of the Regulations.

DECISION

1. The Tribunal affirms the decision not to grant the Applicants Student (Temporary) (Class TU) (Subclass 500) visas.

Dr Jason Harkess
Member

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