ZHANG (Migration)

[2020] AATA 2782

ZHANG (Migration) [2020] AATA 2782 (7 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Liang ZHANG

CASE NUMBER:  2000959

HOME AFFAIRS REFERENCE(S):          BCC2019/5436909

MEMBER:Steven Griffiths

DATE:7 May 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 7 May 2020 at 2:20pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –no evidence of current enrolment – applicant is no longer enrolled – applicant has been invited to apply for a 190 Visa – Tribunal supporting the request Ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 1.03, Schedule 2, cl 500.211

Education Services for Overseas Students Act 2000

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 18 January 2020 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 29 October 2019. 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.500.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. On 31 March 2020 the Tribunal wrote to the applicants through their registered migration agent Mr. Bo Li, of Zhijievisa Pty Ltd, via email [email protected] inviting him to a hearing, pursuant to s.360(1) of the Act, scheduled for 7 May 2020 and providing the opportunity for any additional information, and in particular a current Confirmation-of-Enrolment, that he may wish to rely upon, to be provided by 30 April 2020.

5. On 24 April 2020 the Tribunal received from the registered migration agent confirmation the applicant has been invited to apply for a 190 Visa, is no longer enrolled to study and wishes the review application to be finalised so the applicant can apply to the Minister for Home Affairs for consideration to intervene.

6. The applicant appeared before the Tribunal on 7 May 2020 to give evidence, respond to questions and present arguments.  The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The registered migration agent took part in the Tribunal hearing.

8. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by Microsoft Teams or telephone. No concerns were raised by the parties on holding a Microsoft Teams hearing and the Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.  

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed and the matter referred to the Minister to consider the request from the applicant for intervention to allow a 190 Visa application to be lodged.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. The Tribunal has read and had regard to information provided by the applicant to the Department. The Tribunal has also read and had regard to the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant with his application for review.

12. The Tribunal notes the delegate’s decision was based around compliance with cl.500.211 of the Regulations and if the applicant was enrolled in a course of study, with the applicant having been provided with an opportunity of 28 days to provide evidence of course of study and had not responded.

13. The applicant is a 31-year-old male citizen of China, who arrived in Australia on 4 April 2009 on a Student 572 Visa, granted 20/3/09 and to cease 30/9/10. The applicant has been in Australia on a series of bridging visa’s, Student 500 Visas and Graduate 485 Visa, and has been on  WA-010 Bridging Visa from 30/10/19. 

14. The Tribunal has read and had regard to information provided by the applicant to the Tribunal on 24 April 2020.   

15. The Tribunal determines the issue in the case is whether the applicant satisfies the primary criteria contained in cl.500.211 of the Regulations, which states the following must be satisfied:-

    500.211 One of the following applies:

    (a)the applicant is enrolled in a course of study;

    (b)if the application is made in Australia – the applicant is seeking to remain in Australia because the relevant education institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

    (c)if the applicant is a Foreign Affairs student – the applicant has the support of the Foreign Affairs Minister for the grant of the visa;

16. 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.

17. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulation 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. The applicant did not claim to meet any of the alternative criteria of cl.500.211.

18. The Tribunal notes the documented and oral evidence of the applicant confirming that he had a letter of offer for a course of study, the topic for which he was not able to recollect, but had not enrolled in a course of study immediately prior to or since the student visa application was lodged on 29 October 2019.

19. 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.

20. 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.

21. The Tribunal notes the request of the applicant, documented on 24 April 2020 and provided as part of oral evidence, for the matter to be referred to the Minister to consider intervention, on the basis of an invitation to lodge a Skilled - Nominated (Subclass 190) (Permanent) Visa supported by the New South Wales Department of Jobs, Precincts and Region, by 30 May 2020.

22. The Tribunal notes the oral evidence of the applicant that he sought the opportunity to apply for a Skilled 190 Visa to allow him to remain in Australia and continue working in the medical field using his skills as a Registered Nurse, with the Tribunal supporting the request for referral to the Minister.

    DECISION

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

    Steven Griffiths
    Member