Bethala (Migration)

[2020] AATA 4340

Bethala (Migration) [2020] AATA 4340 (24 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Mary Esther Snehalatha Bethala
Mr Jonathan Kranti Kumar Amara

CASE NUMBER:  1929666

DIBP REFERENCE(S):  BCC2018/3326124

MEMBER:Amanda Upton

DATE AND TIME OF

ORAL DECISION AND REASONS:         24 September 2020 at 10:11 am (VIC time)

DATE OF WRITTEN RECORD:                14 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 14 October 2020 at 1:11pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – not currently enrolled – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.111, 500.212, 500.311

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 14 October 2019 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 24 September 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 number 1929666. Your name is Mary Esther Snehalatha Bethala. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 October 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under section 65 of the Migration Act.  You applied for the visa on 3 September 2018.

4. At the time of the application class TU contained two subclasses: subclass 500 student and subclass 590 student guardian.  You applied for the visa to undertake study in Australia and you do not claim to meet the criteria for a subclass 590 student guardian visa.

5. The delegate in this case refused to grant the visa on the basis that you did not satisfy the requirements of clause 500.212 of schedule 2 to the Migration Regulations because the delegate was not satisfied that you were a genuine student who intends genuinely to stay in Australia temporarily.

6. You appeared before the Tribunal today to give evidence and present arguments.  You have been represented in relation to the review by your registered migration agent.  While the issue before the delegate was whether you are a genuine temporary entrant, the issue before the Tribunal now is whether at the time of this decision you meet 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 500.211 to clause 500.218 must be satisfied by at least one applicant. The other members of the family unit who are applicants for the visa need only satisfy the secondary criteria.

8. The issue in the present case is whether the applicant is enrolled in a course of study as required for the grant of a student visa.  Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study.  The applicant does not claim to meet any of the alternative criteria in clause 500.211.

9. A course of study is relevantly defined in clause 500.111 of the Regulations as a fulltime registered course. Registered course is defined in regulation 103 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.

10. On 8 September 2020, a written invitation to attend the hearing today was sent to you.  In that invitation you were requested to provide evidence of enrolment in an approved course of study to the Tribunal at least seven days before the scheduled date of hearing.  Such evidence has not been provided.  And at the hearing today you were again asked to provide evidence as to whether or not you were enrolled in a registered course of study.  You have confirmed to the Tribunal that you are not.

11. In your sworn evidence before the Tribunal you have confirmed that you were last enrolled in a course of study in October 2019 when you completed your Advanced Diploma of Business.  You have not been enrolled in a course since that time as you have been unwell.  The Tribunal understands that that is the case, however you do not currently have an enrolment in a registered course of study.  You have confirmed that you are not enrolled in any course of study in Australia.

12. Accordingly, there is no evidence before the Tribunal that you are now enrolled in any course of study, therefore the Tribunal is not satisfied that at the time of this decision you are enrolled in a course of study and clause 500.211 accordingly is not met.

13. Given the above findings the Tribunal finds that the criteria for the grant of a subclass 500 student visa are not met.  You do not claim to meet the criteria for a subclass 590 student guardian visa and accordingly the decision under review must be affirmed.

14. As the primary applicant is found not to meet the criteria for the grant of a student visa, dependent applicants do not satisfy clause 500.311 and accordingly no further inquiry is required with regards to the further dependent applicant.

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

    DECISION

16. The Tribunal affirms the decisions under review.

    Amanda Upton
    Member