Bhatt (Migration)

[2019] AATA 2986

Bhatt (Migration) [2019] AATA 2986 (26 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Milan Bhatt

CASE NUMBER:  1716319

HOME AFFAIRS REFERENCE(S):          BCC2017/965452

MEMBER:David Thompson

DATE:26 June 2019

PLACE OF DECISION:  Perth

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

Statement made on 26 June 2019 at 3:28pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met – not enrolled in any course of study– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.111, 500.211, 500.212
Education Services for Overseas Students Act 2000

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 July 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 11 March 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 she was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal by telephone on 26 June 2019 to give evidence and present arguments.

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.

7. While the issue before the delegate was whether the whether the applicant is a genuine temporary entrant, the applicant stated in his response to the Tribunal’s invitation to provide information pursuant to s.359(2) that he did not have a current confirmation of enrolment in a registered course of study. The issue before the Tribunal therefore became whether, at the time of decision, the applicant meets the enrolment requirement in cl.500.211(a) for a student visa.

   Enrolment (cl.500.211)

8. 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). The applicant does not claim to meet any of the alternative criteria in cl.500.211, and nothing in the material before the Tribunal suggests that he is in a position to make such a claim.

9. ‘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.

10. Prior to the scheduled hearing date, the Tribunal obtained a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS). That record indicated that the applicant last studied on 10 March 2017. The applicant’s PRISMS record also confirmed that he was not enrolled in a registered course of study as at the date of hearing.

11. At hearing, the Tribunal asked the applicant whether it was true that he was not currently enrolled in a course of study, as he had stated in his response to the Tribunal’s request for information. He confirmed that this was the case. The Tribunal then explained to him that as enrolment in a registered course of study was a mandatory requirement of the grant of a student visa, the determinative issue in this hearing had changed and was now the issue of enrolment. The applicant stated that he understood this.

12. In accordance with the requirements of s. 359AA of the Act, the Tribunal put a copy of the applicant’s PRISMS record to him and invited him to comment on the matters noted in the paragraph 10 of this decision. The applicant confirmed that the information noted in paragraph 10 above was correct. He added that he was not currently enrolled because he had had to return to India for 3 months to get married, and that both he and his wife were currently in Australia.

13. In these circumstances, and given the evidence discussed above, the Tribunal not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

14. Given the above findings, 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

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

    David Thompson
    Member