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

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).
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.
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.
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.
The applicant was assisted in relation to the review by her registered migration agent, although her agent did not attend the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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)
Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study:…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] AATA 3033
Decision Date: 17 May 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision not to grant a Subclass 500 (Student) visa. The primary dispute concerned whether the applicant met the criteria for the visa, specifically the genuine temporary entrant requirement and, as the case progressed, the enrolment requirements.

The legal issues before the Tribunal were whether the applicant satisfied the genuine temporary entrant criterion under cl.500.212 and, more critically, the enrolment requirement under cl.500.211 of Schedule 2 to the Regulations. Clause 500.211 requires an applicant to be enrolled in a full-time registered course of study at the time of the decision.

The Tribunal accepted that the applicant was enrolled in a registered course of study at the time of the hearing. However, subsequent information obtained from the Provider Registration and International Student Management System (PRISMS) indicated that the applicant had completed that course and had not enrolled in any further studies. The Tribunal notified the applicant of this information and its potential impact on her visa application, explaining that this failure to maintain enrolment in a registered course was a reason for affirming the original decision. The Tribunal also advised that it might change the determinative issue to the enrolment requirement rather than the genuine temporary entrant criterion.

Ultimately, the Tribunal found that the applicant did not meet the enrolment criteria for the Subclass 500 (Student) visa. As the applicant did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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) 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. ‘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. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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