Wang (Migration)

[2019] AATA 1829

Wang (Migration) [2019] AATA 1829 (5 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rui-Siang Wang

CASE NUMBER:  1804494

HOME AFFAIRS REFERENCE(S):           BCC2017/4563016

MEMBER:David Thompson

DATE:5 June 2019

PLACE OF DECISION:  Perth

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

Statement made on 05 June 2019 at 3:17pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – not enrolled in a course of study 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. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 February 2018 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 1 December 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 he was not satisfied that the applicant genuinely intended to stay in Australia in order to study and then return to his home country.

4. The applicant appeared before the Tribunal on 5 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

6. While the issue before the delegate was whether the applicant satisfied the requirements of cl.500.212 and so was a genuine temporary entrant, the issue at hearing on the applicant’s evidence became whether or not, at the time of decision, the applicant met the enrolment requirement in cl.500.211(a) for a student visa.

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 meets the criterion prescribed in cl.500.211.

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, and has not produced any evidence that suggest that he might do so.

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 12 April 2019 the applicant was sent a request for information pursuant to s.359(2) of the Act. The applicant responded to that request on 26 April 2019, by completing an online form provided for that purpose.  The online form contained the question “Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study.” The applicant answered that question “No.”

11. On 13 May 2019 a written invitation to appear before the Tribunal was sent to the applicant. In that invitation the applicant was requested to provide a copy of his current Confirmation of Enrolment and evidence of enrolment in a full-time registered course to the Tribunal at least 7 days before the hearing. Such evidence was not provided.

12. The applicant’s records in the Provider Registration and International Student Management System (PRISMS) did not disclose any current enrolment in a registered course of study, or indeed any course of study.  At the hearing, that PRISMS record was put to the applicant, strictly in accordance with s.359AA of the Act.  The applicant agreed once more that he was not currently enrolled in a course of study. At the hearing the applicant was again given the opportunity to provide enrolment evidence to the Tribunal, such as a copy of current confirmation of enrolment certificate. No such evidence was forthcoming.

13. Further, the applicant confirmed in sworn evidence that no current enrolment in an approved course of study exists.

14. The applicant acknowledged understanding that the determinative issue before the Tribunal had changed. The applicant was given an opportunity to address the Tribunal in relation to this determinative issue. He handed up a copy of his Confirmation of Enrolment for a course in General English in which he enrolled in 2018, to take place between 8 January 2018 and 22 June 2018. The applicant stated that he started that course but could not finish it because his visa application was refused. He gave evidence that the refusal, and the grounds stated in the delegate’s decision, upset and preyed on him so much that he was unable to concentrate and ceased studying.

15. The applicant stated in evidence that he though the delegate’s decision was in fact about some else, and based on information in some other applicant’s file.  His main reason for thinking this appears to have been a statement in the delegate’s decision that “You lodged your student visa application on 1 December 2017 and provided an offer letter from Holmes Institute ...” The applicant stated that he had never had any dealings with Holmes Institute and had certainly never received a letter of offer from them.  This would appear to have been an error on the delegate’s part – certainly, there is no letter of offer from Holmes College, and no mention of that institution, in the file provided by the Department to the Tribunal. Nevertheless, the Tribunal is not convinced that the delegate was mistaken as to any other matter of fact. In fairness to the applicant, however, it should be stated that the evidence before the Tribunal might well have sustained a finding that the applicant did in fact genuinely intend to return to his home country, Taiwan, at the conclusion of his English courses.  The applicant provided written submissions to the Tribunal in which he addressed the delegate’s concerns and made a number of reasonable points, including points as to the potential economic benefits of superior English skills in Taiwan and the utility of studying English in Australia rather than in Taiwan.   

16. Be that as it may, the issue of whether or not the applicant genuinely intended to return to his home country once he had finished studying was not the determinative issue in this case, as explained above.  There is no evidence before the Tribunal that the applicant is enrolled in any approved course of study. Therefore 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 the grant of a subclass 590 (Student Guardian) visa. For these reasons, the Tribunal has concluded that the decision under review should be affirmed.

    DECISION

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

    David Thompson
    Member