Chahal (Migration)

[2021] AATA 2691

Chahal (Migration) [2021] AATA 2691 (16 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pankaj Chahal

CASE NUMBER:  1934995

HOME AFFAIRS REFERENCE(S):          BCC2019/4315105

MEMBER:Alison Murphy

DATE:16 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 16 June 2021 at 9:19am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – applicant failed to provide requested information –genuine temporary entrant criterion not met– not currently enrolled in a registered course of study –no current confirmation of enrolment– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.03, Schedule 2, cls 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 Home Affairs on 20 November 2019 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 29 August 2019. 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).

4. On 25 February 2021 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting him to provide information in writing about, among other things, his enrolment in a course of study. That letter invited the applicant to provide the information by 11 March 2021, noting that if he could not do so he could ask the Tribunal for an extension of time in which to provide the information.

5. The Tribunal’s letter also noted that if the Tribunal did not receive the information within the period allowed or as extended, the Tribunal may proceed to make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The applicant did not respond to the Tribunal’s invitation.

6. On 26 May 2021, the Tribunal wrote to the applicant putting the following particulars to the applicant pursuant to s.359A of the Act:

   A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that you do not hold a current Confirmation of Enrolment in a course of study.

   This information is relevant to the review because you have applied for a Student visa and it is a requirement for the grant of a Student visa that you are enrolled in a course of study at the time of decision (clause 500.211). A course of study is defined as a full-time registered course. There are limited exceptions to this requirement which do not appear to be relevant to your review (such as where you are a Foreign Affairs, Defence or secondary exchange student).

   If we rely on this information in making our decision, we may find that you are not currently enrolled in a course of study. This would mean that you do not meet clause 500.211. The consequence of the Tribunal relying on this information is that it would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant you a Student visa.

7. The invitation was sent to applicant’s registered migration agent and advised that, if the information was not provided in writing by 9 June 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The applicant has not responded to the Tribunal’s invitation or otherwise made contact with the Tribunal.

8. As the applicant failed to respond within the prescribed period, the applicant is not entitled to appear before the Tribunal and the Tribunal has no power to permit him to appear[1].

   [1] Sub-sections 359C, s.360(2)(c), s.360(3) and s.363A of the Act

9. The applicant was assisted in relation to the review by their registered migration agent.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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. The issue in the present case is whether the applicant is enrolled in a course of study.

    Enrolment (cl.500.211)

12. 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.

13. ‘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.

14. As set out in the Tribunal’s letter dated 26 May 2021, a check of the Provider Registration and International Student Management System (PRISMS) indicates that the applicant does not hold a current Confirmation of Enrolment in a course of study. The applicant was invited on two occasions to provide information about his current enrolment in a course of study but failed to do so.

15. Therefore, the Tribunal is 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.

16. 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

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

    Alison Murphy
    Member