Bommareddy (Migration)

[2021] AATA 1238

Bommareddy (Migration) [2021] AATA 1238 (11 March 2021)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Satish Reddy Bommareddy
Miss Madhu Vantikommu

CASE NUMBER:  1920000

DIBP REFERENCE(S):  BCC2019/1622298

MEMBER:Peter Booth

DATE AND TIME OF

ORAL DECISION AND REASONS:         11 March 2021 at 1:42 pm (VIC time)

DATE OF WRITTEN RECORD:                26 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 26 April 2021 at 10:43am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no current enrolment – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.511, 500.211, 500.212

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 3 July 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 11 March 2021, 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 1920000 in the matter of Bommareddy.

4. This is an application for review of a decision made by a delete of the Minister for Immigration on 3 July 2019 to refuse to grant you a Student Temporary Class TU visa pursuant to 65 of the Migration Act.

5. You applied for the visa on 1 April 2019 to undertake study in Australia.  At the time the visa application was lodged the Student Temporary Class Tu visa contained to subclasses, subclass 500 the Student visa and subclass 590 the Student Guardian visa.  The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a subclass 590 visa.

6. The delegate in your 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. 

7. You appeared before the tribunal today to give evidence and present arguments.

8. While the issue before the delegate was whether you are a genuine temporary entrant, the issue before the Tribunal is now whether at the time you meet the enrolment requirements of a Student visa. 

9. The criteria for a subclass 500 visa are set out in part 500 of schedule 2 to the regulation.  The primary criteria in clause 500.211 to the family unit, if any, who are the applicants for the visa need only satisfy the secondary criteria.  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.

10. Clause 500.211 relevantly requires that at the time of this decision that 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. 

11. ‘Course of study’ is relevantly defined in clause 500.111 of the regulations as a ‘full-time registered course’. ‘Registered course’ is defined in regulation 1.03 of the Regulations as a course of education or provided by an institution, body, or person, that is registered pursuant to division 3 of part 2 of the Education Services for Overseas Students Act 2000 to provide the course to overseas students.

12. On 22 February 2021, a written invitation to attend the hearing 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 the hearing, no such evidence has been provided. 

13. At the hearing today you were again requested to provide this evidence, such as a copy of your current certificate of Certificate of Enrolment. You have not done so. 

14. In your evidence today you have confirmed that you were last enrolled in a Diploma of Hospitality Management, which finished in May 2020.  You have further confirmed that you are not currently enrolled in any course of study in Australia, nor have you been so since May 2020.

15. Accordingly, there was no evidence before me that you are now enrolled in any course of study, therefore the tribunal finds that the criteria for the grant of a Subclass 500 visa are not met. You do not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

16. For these reasons, the tribunal has concluded that the decision under review should be affirmed. 

17. The tribunal affirms the decision not to grant the applicant a Student Temporary Class TU visa. 

18. The application of the applicant having failed it follows that the application of the secondary applicant also fails. 

19. This decision is made at 1.42 pm on 11 March 2021.

    DECISION

20. The Tribunal affirms the decisions under review.

    Peter Booth
    Member