Zhu (Migration)

[2020] AATA 3096

Zhu (Migration) [2020] AATA 3096 (8 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mengmeng Zhu

CASE NUMBER:  1900460

DIBP REFERENCE(S):  BCC2018/3299491

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         8 May 2020 at 10:25 am (VIC time)

DATE OF WRITTEN RECORD:                26 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 26 June 2020 at 3:53pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 December 2018 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 8 May 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in case no. 1900460. The applicant’s name is Ms Zhu. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs on 20 December 2018 to refuse to grant the applicant a student temporary Class TU Subclass Visa under section 65 of the Migration Act 1958. The applicant applied for the visa on 31 August 2018 to undertake study in Australia.

4. The delegate refused the grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.2.1.2 of Schedule 2 to Migration Regulations 1994 because the delegate was not satisfied that the applicant was a genuine student who intended genuinely to stay in Australia temporarily.

5. On 8 May 2020 the applicant appeared before the Tribunal to give evidence and to present arguments.  The hearing was conducted with the assistance of an interpreter in the English and Mandarin languages. 

6. While the issue before the delegate is whether the applicant is a genuine temporary entrant, the issue before the Tribunal now is whether at the time of this decision the applicant meets the enrolment requirements for a student visa. 

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 clause 500.2.1.1 to clause 500.2.1.8 must be satisfied by at least one applicant. 

8. The issue in the present case is whether the applicant enrolled in a course of study as required for the granting of a student visa. Clause 500.2.1.1 relevantly requires that at the time of this decision the applicant was enrolled in a course of study. “Course of study” is relevantly defined in clause 500.1.1.1 of the regulations as “a full time registered course.” “Registered course” is defined in the regulations as “a course of education or training provided by an institution, body or person that is registered under the Education Services for Overseas Students Act 2000 to provide the course to overseas students.”

9. On 22 April 2020 a written invitation to attend today’s hearing was sent to the applicant.  The invitation was sent to the applicant at her nominated email address.  At this hearing the applicant acknowledged having received the written invitation to attend the hearing.  In the written invitation it is stated on page 2 of that document that the applicant ought to provide at least seven days before the hearing date, a copy of their current confirmation of enrolment or other documents that show that the applicant is currently enrolled in a course of study to the Tribunal.  Such evidence has not been provided.

10. At the hearing today the applicant informed the Tribunal that she is currently enrolled in a Diploma of Leadership & Management.  The applicant stated that she has two more months to go before finishing that course and then she proposes to undertake an Advanced Diploma of Leadership & Management. 

11. The applicant stated to the Tribunal that she has provided evidence of her enrolment in the form of a document that she has submitted in advance of the hearing. 

12. The Tribunal has had regard to the document that the applicant submitted, it is headed, “Statement of Attainment.”  The document appears to be issued by the Melbourne Education Institute.  It demonstrates that at various times in 2019, the applicant has successfully completed subjects in a Diploma of Leadership & Management.  The Tribunal explained to the applicant that this document does not provide evidence of current enrolment, it merely demonstrates what has been achieved by the applicant previously. 

13. The applicant informed the Tribunal that she did not know that she had to provide a CoE to the Tribunal.  The applicant stated further that she cannot provide a letter of confirmation of enrolment presently due to the Covid-19 pandemic which has prevented her from going out and obtaining that documentation, and that she is currently studying online, given the current environment. 

14. The Tribunal explained to the applicant that it would still be possible in the circumstances to have requested, electronically, a copy of her current confirmation of enrolment from her education provider.  No adjournment request was made by the applicant for the purposes of seeking to obtain a confirmation of enrolment.  However, the Tribunal considered whether it would be appropriate to consider granting a modest adjournment in the circumstances. 

15. The Tribunal concluded that it was not appropriate to grant an adjournment in the circumstances because the Tribunal is of the view that the applicant has had sufficient time in which to procure evidence of current enrolment in advance of the hearing.

16. The Tribunal considers that the applicant has had a fair opportunity to provide evidence of current enrolment and the Tribunal forms that view because it is plainly set out in the letter, “Invitation to attend the hearing,” that the applicant is required to produce documents to evidence current enrolment in a course 7 days before the hearing. 

17. Based on all the matters that I have set out above the Tribunal cannot be satisfied that the applicant is enrolled in a course of study based upon the evidence before it.  As there is no satisfactory evidence before the Tribunal evidencing current enrolment at the time of hearing the Tribunal is not satisfied that at the time of this decision the applicant is enrolled in a course of study and accordingly clause 500.2.1.1 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.  For these reasons the Tribunal finds that the decision under review should be affirmed. 

19. The Tribunal affirms the decision not to grant the applicant a Student Temporary Class TE Visa. The decision is made at 10.25 am on 8 May 2020. 

    DECISION

20. The Tribunal affirms the decision under review.

    Vanessa Plain
    Member