Baraily Pokharel (Migration)

[2018] AATA 3266

Baraily Pokharel (Migration) [2018] AATA 3266 (12 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Rubina Baraily Pokharel
Mr Dhirendra Pokharel B K

CASE NUMBER:  1718759

DIBP REFERENCE(S):  BCC2017/1742253

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          12 July 2018 at 12:44 pm (VIC time)

DATE OF WRITTEN RECORD:                13 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Practice and procedure – Hearing rescheduled – Evidence of course enrolment and health insurance

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2 cls 500.211, 500.217 Schedule 4 Criteria 4005

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 2 August 2017 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 12 July 2018 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. MEMBER:  Ms Pokharel, the situation is to be eligible for the grant of a student visa applicants must satisfy a range of requirements that are set out in the Regulations. 

4. You applied for a student visa back on 17 May 2017.  That application was refused on 2 August 2017 because despite asking you to provide a range of evidence, you failed to provide evidence of health cover, and so the delegate found that you did not satisfy Public Interest Criterion 4005 and therefore you did not satisfy clause 500.217, which is a requirement for the grant of a student visa.

5. You appealed that decision to be reviewed by this Tribunal. 

6. In April this year we sent you an invitation to a hearing and we asked you to provide a range of evidence, including evidence that you had health insurance, which is why your visa had been refused.  You did not provide the evidence, but you wrote and you said, "Could we have a visa extension please, I need to go home."  So we granted a visa extension so you could go home to visit a son of yours who you say has problems with his speech.

7. Then over a month ago we sent you another letter saying, "We have rescheduled the hearing for today.  Please provide us with a copy of your current Certificate of Enrolment or other documents to show you are currently enrolled.  Please provide evidence of adequate arrangements for health insurance from a proposed provider which was the reason it was refused," et cetera.  You did not respond to the hearing invitation and you did not provide any evidence.

8. You come here today and I say to you, "Well, have we got any evidence?"  And you say, "No, I haven't got any evidence because I've been stressed and I've only just got back and I haven't had time to sort things out."  And I say, "Are you enrolled?"  And you say, "No, I'm not enrolled.  I was but" - you say the course is cancelled.  I’m not sure that is the case.  You say you studied the course until your visa was refused.  That course started on 19 June 2017.  You say it is a three-month course, the COE says it is a 12‑month course.  Your application was refused on 2 August, so I presume at most you studied it for five or six weeks.

9. However, the role of the Tribunal is conduct what is known as a de novo review, which means taking a fresh look at your application and considering whether you are entitled to a student visa.  The primary decision was made and your application was refused because you failed to provide evidence of health insurance.  You come here today and once again you do not have health insurance.  However, the other thing that you tell the Tribunal is that you are not currently enrolled.

10. The difficulty is that it is only when someone is enrolled is it possible for us to work out a lot of other evidence that is needed to be provided, like how much money do we need, which is money for your course fees and living expenses for you and your husband; how long do we need Overseas Student Health Cover for, which is for how long you intend to stay here.  So we cannot work any of that out, and as you are not currently enrolled and do not hold a current offer of enrolment you do not satisfy clause 500.211, which is a prerequisite for the grant of a visa. 

11. As you do not meet clause 500.211 and are therefore not eligible for the grant of a visa, the Tribunal does not intend to consider whether you meet any of the other requirements, like health or whatever. 

12. As you do not meet clause 500.211 it is the decision of this Tribunal to affirm the decision under review. 

    DECISION

13. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member