Wang (Migration)

[2021] AATA 4832

Wang (Migration) [2021] AATA 4832 (29 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Zi Wang

CASE NUMBER:  1925546

HOME AFFAIRS REFERENCE(S):          BCC2019/2548998

MEMBER:Warren Stooke AM

DATE:29 November 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 29 November 2021 at 8:30am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – enrolment in a course of study – lengthy stay in Australia – value of course to future career – enrolment cancelled – decision under review affirmed      

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cl 500.111, 500.211, 500.212; r 1.03

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 22 August 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 May 2019. 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 (Cth) (the Regulations) because the delegate found it difficult to reconcile the applicant’s extensive proposed stay onshore with their claim they are a genuine temporary resident. Rather, the significant period of time the applicant has spent in Australia since their initial arrival suggests the applicant’s potential circumstances in Australia outweigh any incentive they have to depart. The applicant has not demonstrated that their proposed course of study in Australia would be of greater value to their future than undertaking the same, or similar, course in their home country and has not demonstrated that their proposed course of study would afford them greater remuneration or employment prospects in their home country.

4. On 8 July 2021, the Tribunal invited the applicant pursuant to s.359(2) to provide information regarding an enrolled registered course of study and support for arguments pertaining to the status of a genuine temporary entrant for the purposes of study, which was required to be provided by 22 July 2021. The invitation letter included the following statement:

   “If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.”

5. On 7 October 2021, the Tribunal pursuant to s359A requested the applicant provide evidence of enrolment in a registered course of study by 21 October 2021.

6. As of the date of decision there has been no response from the applicant. Given that the applicant has not provided any response to the Tribunal’s correspondence of 8 July 2021 and 7 October 2021, the applicant has lost the right to a hearing and accordingly, the Tribunal has proceeded to determine the matter without recourse to a hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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 a registered course of study and thereby complies with cl.500.211 of Schedule 2 of the Regulations.

   Enrolment (cl 500.211)

9. 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.

10. ‘Course of study’ is relevantly defined in cl 500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in reg 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 (Cth), to provide the course to overseas students.

11. On 7 October 2021 the Tribunal corresponded with the applicant pursuant to s359A, which included the following content:

    “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 comments or response, be the reason, or a 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:

    ·     A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that you do not hold a current Confirmation of Enrolment in a course of study.

    This information is relevant to the review because you have applied for a Student visa and it is a requirement for the grant of a Student visa that you are enrolled in a course of study at the time of decision (clause 500.211). A course of study is defined as a fulltime registered course. There are limited exceptions to this requirement which do not appear to be relevant to your review (such as where you are a Foreign Affairs, Defence or secondary exchange student).

    If we rely on this information in making our decision, we may find that you are not
    currently enrolled in a course of study. This would mean that you do not meet clause
    500.211. The consequence of the Tribunal relying on this information is that it would
    be the reason or part of the reason for the Tribunal to affirm the decision of the
    delegate to refuse to grant you a Student visa.

    You are invited to give comments on or respond to the above information in writing.
    Your comments or response should be received by 21 October 2021. If the
    comments or response are in a language other than English, they must be
    accompanied by an English translation from an accredited translator.

    If you cannot provide your written comments or response by 21 October 2021, you
    may ask us for an extension of time in which to provide the comments or response. If
    you make such a request, it must be received by us by 21 October 2021 and you
    must state the reason why the extension of time is required.
    We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

    If we do not receive your comments or response within the period allowed or as
    extended, we may make a decision on the review without taking any further action to
    obtain your views on the information. You will also lose any entitlement you might
    otherwise have had under the Migration Act 1958 to appear before us to give
    evidence and present arguments.

    If you have any questions, please email [email protected], or contact me on the
    number listed below, or telephone our national enquiry line on 1800 228 333. For
    language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.”

12. The Tribunal pursuant to s359A provided the applicant with a PRISMS record for comment that indicated the proposed course of Bachelor of Business scheduled from 11 November 2019 to 4 November 2021 had been cancelled for non-commencement of studies, as at a review of 30 September 2021.

13. As the applicant has not responded to the Tribunal s359A request for information of 7 October 2021 and provided evidence of a current enrolment, the Tribunal is satisfied that the applicant is not currently enrolled in a registered course of study.

14. 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.

15. 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

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

    Warren Stooke AM
    Member