Baljeet Kaur (Migration)

[2019] AATA 4818

Baljeet Kaur (Migration) [2019] AATA 4818 (28 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Baljeet Kaur

CASE NUMBER:  1811659

DIBP REFERENCE(S):  BCC2018/940635

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:          28 August 2019 at 10:03 am (VIC time)

DATE OF WRITTEN RECORD:                1 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 01 October 2019 at 7:04am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met– not enrolled in a registered course of study –no  confirmation of enrolment– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212
Education Services for Overseas Students Act 2000

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 April 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 28 August 2019 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. I will now proceed to deliver my decision and my reasons for that decision in relation to the present application on review.  The time now is 9.59 am on Wednesday, 28 August 2019.  This is an oral statement of the decision and reasons of the Administrative Appeals Tribunal in case number 1811659, in relation to an application for review brought by Ms Baljeet Kaur, the applicant.

4. The applicant is a citizen of India. She seeks review of a decision made by a delegate of the Minister for Home Affairs on 7 April last year, refusing to grant her a student visa. She applied for this visa on 27 February last year. The specific type of visa she sought was a subclass 500 visa. Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates by the operation of section 65 of the Migration Act. If granted, a student visa permits a non-Australian citizen to remain in Australia and study on a full-time basis on a temporary basis.

5. In this case, there is only one applicant; she seeks a student visa so she can reside in Australia while undertaking a course of study. For the visa to be granted, she must meet the primary criteria set out in part 5 of schedule 2 of the regulations. The student visa was refused originally in this case because the delegate found that she did not meet criteria contained in clause 500.212 of schedule 2 of the regulations because the delegate was not satisfied that she was a genuine applicant for entry and stay as a student.

6. The tribunal convened a hearing to consider the merits of the application today, being 28 August 2019.  The applicant appeared at the hearing to give evidence and present arguments.

7. Clause 500.212 requires a student visa application to be founded on evidence of the applicant being enrolled at a course of study.  A course of study is defined as a full-time, registered course of study.  All registered courses are listed in the Commonwealth Register of Institutions and Courses for Overseas Students, known as CRICOS.  That information is incorporated into the Australian government’s PRISMS database. 

8. When a student enrols, that database produces what is referred to as a confirmation of enrolment and that confirmation of enrolment, otherwise known as a CoE, functions essentially as proof of enrolment for the purposes of clause 500.211. 

9. While the determinative issue before the delegate was whether the applicant meets the genuine temporary entrant criteria under clause 500.212 of the regulations, it became clear at the outset at today’s hearing that she did not meet the enrolment criterion under clause 500.211.

10. The tribunal asked the applicant as to whether or not she could produce any evidence, documentary evidence, demonstrating that she was currently enrolled in a registered course of study.  She stated in evidence that she was not currently enrolled.  When the tribunal wrote to the applicant over two weeks ago, inviting her to this hearing, the tribunal advised her that it was necessary for her to produce confirmation of enrolment or other documents demonstrating enrolment for the purposes of proving the enrolment criterion under clause 500.211. 

11. The applicant admitted in evidence that she had received that letter and that she had read that request for enrolment information.  Nevertheless, she turns up today without that information.  In these circumstances, the determinative issue has become whether she meets the criteria contained in clause 500.211.  The tribunal notes that the applicant was unable to offer any satisfactory explanation as to why she was not able to produce the evidence for the purposes of today’s hearing.  In these circumstances, the tribunal finds that the applicant does not meet the regulatory requirements for the grant of a student visa because there is no evidence satisfying any of the criteria contained in clause 500.211 of the regulations.

12. The time now is 10.03 am on Wednesday, 28 August 2019 in case number 1811659 in the case of Baljeet Kaur. The tribunal affirms the decision under review.  That concludes the hearing. 

    DECISION

13. The Tribunal affirms the decision under review.

    Dr Jason Harkess
    Member