WANG (Migration)

[2019] AATA 2062

WANG (Migration) [2019] AATA 2062 (25 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms TZU-YUN WANG

CASE NUMBER:  1709154

HOME AFFAIRS REFERENCE(S):           BCC2017/874875

MEMBER:Wendy Banfield

DATE:25 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 25 February 2019 at 8:47pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – enrolment cancelled after hearing – no evidence of enrolment 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 Immigration and Border Protection on 12 April 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 6 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.

4. The applicant appeared before the Tribunal on 1 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

7. 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.

8. ‘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.

9. On 6 July 2018 the applicant was invited to attend a hearing scheduled for 1 August 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. At the time of the hearing, the applicant was enrolled to study a Diploma of Business Administration which began on 9 July 2018 and was to finish on 7 July 2019.

10. After the hearing, the Tribunal became aware that the applicant’s enrolment in a Diploma of Business Administration had been cancelled. On 6 February 2019 the Tribunal wrote to the applicant inviting her to comment or respond to this information. The applicant was advised as follows:

    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 comment or response to be the reason or part of the reason for affirming the decision under review.

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

    The particulars of the information are:

    ·According to the Provider Registration and International Student Management System (PRISMS) records available to the Tribunal, you are not currently enrolled in a course of study. You provided a Confirmation of Enrolment for a Diploma of Business Administration at the Tribunal hearing on 1 August 2018 but PRISMS records show that your enrolment has since been cancelled. PRISMS also records that the last course you completed was English which finished on 17 March 2017.

    This information is relevant to the review because the Migration Regulations state that at the time of decision, to be eligible for the grant of a student visa an applicant must be enrolled in a full-time registered course of study.

    If the Tribunal relies on the information indicating you are not enrolled to study in making a decision, it may lead to the decision under review being affirmed.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 20 February 2019.

11. The applicant did not respond to the invitation and has not provided evidence to demonstrate they are currently enrolled to study.

12. 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

13. 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

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

    Wendy Banfield
    Member