WEE (Migration)

[2019] AATA 2980

WEE (Migration) [2019] AATA 2980 (25 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SWEE SIONG WEE

CASE NUMBER:  1711686

HOME AFFAIRS REFERENCE(S):          BCC2017/436361

MEMBER:Wendy Banfield

DATE:25 June 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 June 2019 at 11:16am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met – not enrolled in any course of study– decision under review affirmed

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

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 31 May 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 2 February 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.

   Background

3. The applicant is a citizen of Malaysia and is currently 29 years old. He came to Australia as the holder of a Visitor Visa on 9 November 2016. The applicant applied for a Student Visa and enrolled in a General English course and a Diploma of Leadership at Management. At the time of the hearing, and time of decision, the evidence before the Tribunal indicated those enrolments had been cancelled and the applicant was not enrolled in a course of study.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because it was determined the genuine temporary entrant criteria had not been met.

5. The applicant appeared before the Tribunal on 18 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

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

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 an approved course of study as required for the grant of a Student Visa.

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 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.

11. On 22 August 2018 the applicant was invited to attend a hearing scheduled for 18 September 2018. The invitation asked the applicant to provide a copy of a current Confirmation of Enrolment (COE) or other documents that show he 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. The applicant submitted two COEs for a General English course from 6 March 2017 to 23 February 2018 and a Diploma of Leadership and Management from 5 March 2018 to 22 February 2019. The COEs had been created on 13 January 2017 and did not appear to be current. Although the applicant had provided offer and acceptance letters from his education provider and bank receipts for fees paid, according to the Provider Registration and International Student Management System (PRISMS) those enrolments had been cancelled for non-commencement of studies.

12. At the Tribunal hearing on 18 September 2018 the applicant was advised that in order to be eligible for a student visa, he must be enrolled in an approved course of study at the time of decision. The applicant claimed he had been studying English but because of his language difficulty, he had not started the Diploma of Leadership and Management. The applicant was asked about a letter from his college dated 17 September 2018 that stated he had begun the course but when questioned further, he said he had not started it. He said he had not been issued with new COEs.

13. In accordance with section 359AA of the Migration Act, the Tribunal put to the applicant, particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The applicant was advised the information is relevant to the review because, subject to his comment or response, it appeared he did not meet a requirement for the grant of a student visa. The information put to him was that according to PRISMS, he is not currently enrolled in a course of study. The applicant was told that if the Tribunal relies on the information it may lead to the decision under review being affirmed. He was invited to comment on or respond to the information and advised that he may seek additional time. The applicant was shown a copy of the PRISMS record.

14. The applicant claimed he did attend the college during the time indicated in the record but he had only come to know about COEs after being informed by his agent. He did not know why the PRISMS record showed his courses were cancelled.

15. The applicant did not provide evidence of enrolment or other satisfactory documents that show he is enrolled in an approved course of study. He was given time after the hearing to obtain acceptable evidence of current enrolment but did not provide any further submissions.

16. 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.

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 a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Wendy Banfield
    Member