Yates (Migration)

[2018] AATA 3109

Yates (Migration) [2018] AATA 3109 (24 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daryl Nicholas Yates

CASE NUMBER:  1706446

HOME AFFAIRS REFERENCE(S):           BCC2016/3382643

MEMBER:Wendy Banfield

DATE:24 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 24 July 2018 at 10:13pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Evidence of course enrolment – Certificate of Enrolment not submitted – Applicant did not respond to hearing invitation – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 1.03 Schedule 2 cls 500.111, 500.211, 500.212

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 8 March 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 12 October 2016. 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 the genuine temporary entrant criteria were not met.

   Background

4. The applicant is a British citizen and is currently aged 36. He came to Australia initially on 26 March 2003 and has held several visas, including Bridging visas since that time. At the time of applying for the visa which is the subject of this review, the applicant was enrolled to study a Diploma and Advanced Diploma of Business.

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

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 is whether the applicant is enrolled in an approved course of study as required for the grant of a student visa.

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.

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. On 19 June 2018 the applicant was invited to attend a hearing scheduled for 9 July 2018. The invitation asked the applicant to provide a copy of a current Certificate 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 did not submit a COE as requested.

11. The applicant did not respond to the hearing invitation and did not attend the Tribunal hearing at the time and place scheduled. No request for a postponement prior to the hearing has been received and as of the date of decision in this case, the applicant has not been in contact with the Tribunal.

12. On 10 July 2018 the Tribunal wrote to the applicant in accordance with s.359A of the Migration Act inviting him to comment on or respond to information. The applicant was advised as follows:

    I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Student (Temporary) (Class TU) visa.

    In conducting the review, the Tribunal is 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.

    The particulars of the information now being put to you is that according to the Provider Registration and International Student Management System (PRISMS) records, you are not currently enrolled in a course of study. PRISMS records show that your enrolment in a Diploma of Business Administration and Advanced Diploma of Business has been cancelled. There is no evidence you have undertaken any other approved course of study since you applied for the visa which is the subject of this review.

    In the invitation to attend a hearing you were asked to provide a copy of your current Certificate of Enrolment or other documents that show you are currently enrolled in a course of study as required for the grant of a student visa. You have not provided information to demonstrate you are enrolled.

    This information is relevant to the review because cl.500.211 of the Migration Regulations state that at the time of decision, to be eligible for the grant of a student visa an applicant must be enrolled in a full-time registered course of study.

    If the Tribunal relies on this information in making a decision, it may lead to the decision under review being affirmed.

13. The applicant was advised he should comment or respond by 24 July 2018. However, as at close of business on 24 July 2018, the applicant had not responded to the invitation or otherwise contacted the Tribunal. The applicant did not provide evidence of enrolment or other documents that show he is enrolled in an approved 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.

    Wendy Banfield
    Member