Xu (Migration)

[2022] AATA 4471

Xu (Migration) [2022] AATA 4471 (7 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Liangcheng Xu

REPRESENTATIVE:  Ms Jie Zhan (MARN: 0639485)

CASE NUMBER:  2116812

HOME AFFAIRS REFERENCE(S):          BCC2021/470321

MEMBER:Joseph Francis

DATE:7 November 2022

PLACE OF DECISION:  Perth

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

Statement made on 07 November 2022 at 2:53pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – current enrolment – decision under review affirmed    

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cls 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 26 October 2021 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 29 March 2021. 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(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they were not satisfied the applicant was a genuine temporary entrant to stay and study in Australia.

4. On 25 March 2022 the Tribunal wrote to the applicant through their registered migration agent pursuant to s 359(2) inviting comments or submissions on the matter.

5. On 16 May 2022 the applicants migration agent notified the Tribunal the applicant wishes the Tribunal to make a decision on the papers, therefore waiving their right to a hearing.

6. The Tribunal has therefore proceeded to make a decision on the matter without a hearing.

7. For the following reasons, the Tribunal has concluded that the matter 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 was originally that the delegate was not satisfied that the applicant was a genuine temporary entrant for the purpose of study.

9. However, the Tribunal has no evidence before it that the applicant has held a current certificate of enrolment, or any certificate of enrolment since the 16 November 2021.

   Enrolment (cl 500.211)

10. 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.

11. ‘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.

12. As there is no evidence to indicate the applicant has any current Certificate of Enrolment, 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.

    Joseph Francis
    Member