Gagandeep Singh (Migration)

[2020] AATA 201

Gagandeep Singh (Migration) [2020] AATA 201 (31 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gagandeep Singh Gagandeep Singh

CASE NUMBER:  1729869

HOME AFFAIRS REFERENCE(S):           BCC2017/3333487

MEMBER:David Thompson

DATE:31 January 2020

PLACE OF DECISION:  Perth

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

Statement made on 31 January 2020 at 4:29pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine intention to stay temporarily – not enrolled in registered course – no response to tribunal’s s 359A letter – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), Schedule 2, cll 500.211(a), 500.212

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 13 November 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 13 September 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 in Australia temporarily.

4. The applicant appeared before the Tribunal on 22 May 2019 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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. As was noted above, the delegate refused the applicant’s visa application because she was not satisfied that he met the genuine temporary entrant requirements of cl.500.212. This was the issue before the Tribunal at hearing.

8. However on 10 January 2020, in the process of making its decision, the Tribunal obtained a search of the applicant’s record from the Provider Registration and International Student Management System (PRISMS). The applicant’s PRISMS record stated that he had finished his last course (a Diploma of Work Health and Safety) and was not enrolled in any course of study subsequently. The determinative issue in the present case then ceased to be whether the applicant satisfied the requirements of cl.500.212, and became the issue of whether the applicant met the requirements of cl.500.211.

   Enrolment (cl.500.211)

9. 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.

10. ‘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.

11. On 14 January 2020 pursuant to s.359A of the Act, the Tribunal wrote to the applicant by email, through his representative. The Tribunal’s letter stated that the Tribunal had information, being a recent check of PRISMS, that indicated that the applicant did not hold a current enrolment and had finished his last course on or about 13 October 2019. The letter went on to explain that this information was relevant to the Tribunal’s review because if the Tribunal were to rely on this information in making its decision it may find that the applicant failed to meet the criterion in cl.500.211 of Schedule 2 of the Regulations, and that if it were to rely on that finding it might conclude that the applicant did not meet the criterion for the grant of a student visa. The Tribunal’s letter went on to invite the applicant to give comments on or respond to that information in writing, and stated that his comments or response should be received by 29 January 2020. The letter also informed the applicant that he could seek an extension of that date, but that a request should be received before 29 January 2020 and must state the reason why an extension of time was required. The Tribunal’s letter concluded by informing the applicant that if the Tribunal did not receive his comments or response within the period allowed or as extended, the Tribunal might make a decision on the applicant’s review without taking any further action to obtain his views on the information set out in the letter.

12. The applicant did not provided his comments or response to the information set out in the Tribunal’s letter by 29 January 2020. Nor did he seek an extension of the time in which to do so. In fact, the Tribunal received no response to its letter at all.

13. There is no evidence before the Tribunal contradicting the applicant’s PRISMS record in the relevant particular. Therefore, on the basis of the applicant’s PRISMS record the Tribunal finds that the applicant is not enrolled in a course of study at the date of this decision, and has not been enrolled in a course of study since 13 October 2019.

14. For that reason, 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.

15. 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

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

    David Thompson
    Member