Daparthi (Migration)

[2019] AATA 5766

Daparthi (Migration) [2019] AATA 5766 (9 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karthik Daparthi

CASE NUMBER:  1818168

HOME AFFAIRS REFERENCE(S):          BCC2018/1797868

MEMBER:Stephen Witts

DATE:9 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 09 December 2019 at 11:05am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – not enrolled – no COE – waiting for results – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 500.111, 500.211, 500.212, r 1.03

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 8 June 2018 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 24 April 2018. 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 the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 9 December 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. The issue in the present case is whether the applicant genuinely intends to stay in Australia temporarily.

   Enrolment (cl.500.211)

7. 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.

8. ‘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.

9. The Tribunal had a discussion with the applicant regarding the status of the applicant’s current enrolment. The Tribunal noted to the applicant that the issue under discussion at this point was the status of the applicant’s enrolment not the applicant’s genuine temporary entrant status. The Tribunal noted to the applicant that although this was the original basis of the department’s decision, which was reviewed by the Tribunal with the applicant, that it was a mandatory criterion for the grant of a student visa that applicant have a current certificate of enrolment and be enrolled to study here in Australia. The Tribunal noted to the applicant that it had written to the applicant on 22 November 2019 inviting the applicant to attend this hearing on 9 December 2019 and had requested that the applicant provide at least seven days before this hearing date a copy of his confirmation of a enrolment to show that he is currently enrolled in a course of study as required by cl. 500.211(a).

10. The applicant stated that he was not enrolled to study here in Australia and did not have a current certificate of enrolment. The applicant stated that he has completed his Diploma of Building and Construction recently but was waiting to hear the result of this hearing to determine his future enrolments. The Tribunal noted to the applicant that to be enrolled to study here was a mandatory criterion for the grant of a student visa and the applicant acknowledged that he was not currently enrolled to study here in Australia.

11. 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.

12. 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

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

    Stephen Witts
    Member