Zhang (Migration)

[2018] AATA 5820

Zhang (Migration) [2018] AATA 5820 (3 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ying Zhang
Mr Qiang Wang
Ms Isabella Wang

CASE NUMBER:  1713935

HOME AFFAIRS REFERENCE(S):           BCC2017/1033217

MEMBER:Stephen Witts

DATE:3 December 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 03 December 2018 at 12:11pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary)(Class TU) – Subclass 500 (Student) – whether the applicant genuinely intends to stay in Australia temporarily – insufficient evidence that applicant was now enrolled in any course of study – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, Schedule 2, r 1.03, cls 500.211(a), 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 15 June 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 15 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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 delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

4. The applicants appeared before the Tribunal on 3 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicants were 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 genuinely intends to stay in Australia temporarily.

   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.

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. Adopting the procedure of the act 359AA the Tribunal reviewed the applicant’s study history with her paying particular regard to the applicant’s PRISMS record. The Tribunal asked the applicant if she wished for some additional time to consider this record prior to having a discussion with the Tribunal.

11. The applicant indicated after some consultation with her Representative that she was able to have a discussion with the Tribunal regarding this academic record.

12. The Tribunal asked the applicant to confirm if she was currently enrolled to study a course here in Australia as the applicant’s PRISMS record indicated that the applicant had completed an Advanced Diploma of Hospitality Management in September 2018 and was not currently enrolled. The Tribunal noted that being enrolled to study a course here in Australia is a mandatory criterion for the granting of a student visa and that this was now the issue in discussion.

13. The applicant stated that she was currently enrolled to study a course here and was requested by the Tribunal to provide evidence to this effect as the applicant’s academic record, as outlined in her PRISMS record, that she was not currently enrolled. The applicant first asserted that she was currently enrolled but could not provide a current certificate of enrolment. She then indicated that she was in fact still studying her Advanced Diploma of Hospitality Management and that the PRISMS record was not up-to-date.

14. When further pressed by the Tribunal to provide evidence that the applicant was still enrolled the applicant and her representative were not able to present any evidence that the applicant was actually currently enrolled to study a course here in Australia. In further discussion with the applicant the applicant stated that she had been having trouble communicating with her educational provider and that she had not received replies to some emails she had sent. She also stated that there had been some medical reasons why she had not been able to be up-to-date in her study. The Tribunal is concerned by this evidence as the applicant was not able to demonstrate that she was currently enrolled and was unable to provide any evidence to that effect.

15. At the hearing the Tribunal again requested the applicant to provide evidence of enrolment, such as a copy of a current Certificate of Enrolment or some evidence that she was still studying her Advanced Diploma of Hospitality Management as the applicant’s PRISMS record clearly indicated that she was no longer enrolled in this course.

16. The Tribunal noted to the applicant that there was not sufficient evidence before the Tribunal that the applicant was now enrolled in any course of study. Therefore the Tribunal informed the applicant that it was not satisfied that the time of this decision that the applicant was enrolled in the course of study and accordingly Cl.500.211 is not met

17. 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.

18. 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.

19. In regard to the secondary applicants the Tribunal finds that they are not members of the family unit of a person who satisfies the primary criteria.

    DECISION

20. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Stephen Witts
    Member