Agastya (Migration)

[2020] AATA 939

Agastya (Migration) [2020] AATA 939 (30 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sai Agastya

CASE NUMBER:  1726644

HOME AFFAIRS REFERENCE(S):          BCC2017/2960289

MEMBER:Andrew George

DATE:30 March 2020

PLACE OF DECISION:  Darwin

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

Statement made on 30 March 2020 at 11:50am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – not enrolled in a registered course of study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 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 11 October 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 17 August 2017. 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 delegate was not satisfied that the applicant intends to genuinely stay in Australia.

4. The applicant appeared before the Tribunal on 17 March 2020 to give evidence and present arguments. Prior to the hearing, and in response to a Request for Student Visa Information, the applicant had declared and submitted that he did not have a current Confirmation of Enrolment in a registered course of study.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 or not the applicant is enrolled in a course of study.

7. 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). ‘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.

8. The applicant gave oral evidence at his hearing. To his credit, he was candid that he is not now enrolled in a registered course of study. The Tribunal accepts this evidence. Therefore, the Tribunal is not satisfied that the applicant is enrolled in a course of study at the time of this decision. The Tribunal also notes that the applicant has not attempted to fulfil the alternative criteria in cl.500.211(b)-(d). Accordingly, the Tribunal finds that cl.500.211 is not met.

9. Given this finding, 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

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

    Andrew George
    Member