Wong (Migration)

[2020] AATA 3033

Wong (Migration) [2020] AATA 3033 (17 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ka Wai Ruby Wong

CASE NUMBER:  1730522

HOME AFFAIRS REFERENCE(S):          BCC2017/3233471

MEMBER:David Thompson

DATE:17 May 2020

PLACE OF DECISION:  Perth

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

Statement made on 17 May 2020 at 12:04pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine entrant as student – current enrolment – applicant completed course after Tribunal hearing – conditional letter of offer of further enrolment – English requirement – civil unrest in Hong Kong – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212; r 1.03

CASES

Ding v Minister for Home Affairs [2019] FCA 1036

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 16 November 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 September 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 she was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. The applicant appeared by telephone before the Tribunal on 4 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

5. The applicant was assisted in relation to the review by her registered migration agent, although her agent did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 was originally the issue of whether the applicant met the genuine temporary entrant criterion provided in cl.500.212. However, as will be explained below, the determinative issue has become the issue of whether the applicant meets the enrolment requirements of cl.500.211.

   Enrolment (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 nor is there any indication in the evidence before the Tribunal that she would have any basis upon which to 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. At hearing, the applicant gave evidence that she was enrolled in a registered course of study, namely a Certificate IV in Accounting and Bookkeeping offered by Southern Academy of Business and Technology. The Tribunal accepts that that was so as of the date of hearing. However, in preparing its decision, the Tribunal obtained a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS). That record indicated that the applicant had completed her Certificate IV in Accounting and Bookkeeping and had not enrolled in any further course. The Tribunal wrote to the applicant pursuant to s.359A of the Act putting to her the information obtained from PRISMS, that is, that she was not enrolled in a registered course of study, and seeking her comment on response to that information. In the same letter, the Tribunal explained that this information was a reason (subject to her response) for affirming the decision under review. The Tribunal’s letter explained why this was the case by reference to the requirements of cl.500.211 of Schedule 2 of the Regulations, and also explained that the Tribunal could change the determinative issue in the case to the issue of enrolment, and decide the review application on that basis rather than on the original basis of whether or not the applicant genuinely intended to stay in Australia temporarily for the purposes of study and return to her home country or some third country at the end of her studies.

11. The applicant responded to the Tribunal’s letter on 14 May 2020. Her response consisted of a copy of a conditional letter of offer of enrolment and statement of fees from Times Academy in respect of a Diploma of Leadership and Management. That conditional letter of offer was dated 14 May 2020, which was the last day allowed to the applicant to respond to the Tribunal’s letter. The person who lodged that document with the Tribunal (presumably the applicant’s registered migration agent) provided a brief covering message in the following terms:

    New offer letter. Due to COVID-19 caused delay from education providers COE will be issued within a couple of days. As currently all remote learning, July will be physical school commencement.

12. Clause 500.211(a) of Schedule 2 of the Regulations requires that at the time of decision an applicant must be enrolled in a course of study. An offer of enrolment does not amount to enrolment in a course of study, and the fact that an applicant has received such an offer does not satisfy the requirements of cl.500.211(a): see Ding -v- Minister for Home Affairs [2019] FCA 1036 at [42]. The requirement is mandatory, and the Tribunal has no discretion or power to dispense an applicant from compliance with it.

13. 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.

14. The applicant’s covering message quoted above does not contain an express request for further time in which to provide documents, but such a request is clearly implicit in it. The Tribunal is not minded to accede to that request, which is in truth a request for time to put the applicant’s affairs in order rather than a request for additional time in which to comment or respond. However, in view of the current conditions resulting from the COVID-19 pandemic and the measures that have been taken at a Federal and State level in response to it, the Tribunal has considered whether it would be unreasonable to come to its decision immediately without allowing time for the applicant to complete her enrolment in the Diploma of Leadership and Management for which she has evidently applied. The Tribunal has decided that it would not be unreasonable to determine this case immediately, for the following reasons:

    a.The applicant has provided no evidence supporting her or her representative’s statement that a Confirmation of Enrolment (CoE) will issue in a couple of days, such as evidence as to when the application was made, or evidence of any interim correspondence or communications from Times Academy adverting to delays in the processing of her application, or similar.

    b.The letter of offer is on its terms a conditional offer, dependent on the applicant producing an “English Certificate equivalent to Upper-Intermediate Level/IELTS 5.5.” The Tribunal has reviewed its own file and the Departmental file in this matter, and finds no evidence that the applicant has taken any IELTS test or examination at all, or has passed any English course at any level higher than Intermediate. It follows that, it the Tribunal’s view, the offer of enrolment is very unlikely to become unconditional and mature into an actual enrolment.

    c.The Tribunal, having considered the evidence before it in relation to the question of whether the applicant meets the genuine temporary entrant requirements of cl.500.212, is not satisfied that she meets those requirements. Without purporting give full reasons for that conclusion, the Tribunal has considered that evidence both in itself and against the factors specified in Ministerial Direction No. 69 under section 499 of the Act, and finds that:

    i.The applicant did not come to Australia with the intention of studying (having arrived on a visitor visa, and having declared an intention to stay for 5 days), and decided to stay in order to investigate the possibilities of permanent migration to Australia. This was quite clear on her own evidence. It amounts to a use of the student migration programme to maintain residence in Australia.

    ii.The applicant’s studies in Australia (a series of short and relatively inexpensive courses) do not appear to be directed toward any particular end to be pursued in her home country. It is, in fact, difficult to see that her studies have any value for her future, particularly as she already has an associate degree in business and her last course (Certificate IV in Accounting and Bookkeeping) is in the same area at a lower level.

    iii.The applicant’s personal ties to her home country (Hong Kong) do not appear to be strong, despite the fact that her family, including her husband, is living there, and nor do her economic ties.

    iv.The applicant has concerns regarding civil and political unrest in Hong Kong, and her potential circumstances in Australia appear to be preferable to her to her potential circumstances in Hong Kong.

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.

    David Thompson
    Member