Gill (Migration)

[2019] AATA 2307

Gill (Migration) [2019] AATA 2307 (17 April 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Bakhshish Singh Gill

CASE NUMBER:  1711703

DIBP REFERENCE(S):  BCC2017/1130606

MEMBER:  Meredith Jackson

DATE AND TIME OF

ORAL DECISION AND REASONS:          17 April 2019 at 11:41 am (QLD time)

DATE OF WRITTEN RECORD:               8 May 2019

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal affirms the decision under review.

Statement made on 08 May 2019 at 11:33am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant criterion not met– evidence of enrolment not provided – not enrolled in an approved course at the time of decision – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359AA, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.111, 500.211, 500.212, 500.218
Education Services for Overseas Students Act 2000

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 May 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

1. At the hearing on 17 April 2019 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

1. Mr Bakhshish Singh Gill (the applicant) applied for the visa on 23 March 2017 to undertake study in Australia. At the time the visa application was lodged the class TU visa contained two subclasses; subclass 500 (student) and subclass 590 (student guardian). The applicant applied for the visa to undertake study in Australia and did not claim to meet the criteria for a subclass 590 student guardian visa.

1. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intended genuinely to stay in temporarily in Australia.

1. The applicant appeared before the Tribunal by telephone with the aid of an interpreter to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

1. While the issue before the delegate was whether the applicant was a genuine temporary entrant, the issue before the Tribunal now is whether at the time of the decision the applicant meets the enrolment requirement for a student visa. The criteria for a subclass 500 student visa are set out in part 500 of schedule 2 to the Regulations. The primary criteria in clause

   500.211 to clause 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.

1. 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. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study, clause 500.211(a). The applicant does not claim to meet any of the alternative criteria in clause 500.211.

1. Course of study is relevantly defined in clause 500.111 of the Regulations as a fulltime registered course. Registered course is defined in regulation 1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered under the Education Services for Overseas Students Act 2000 to provide the course to overseas students.

1. On 25 March 2019 a written invitation to attend today's hearing was sent to the applicant via the applicant’s migration agent or to the applicant’s registered email address. In that invitation, the applicant was requested to provide evidence of enrolment in a fulltime registered course to the Tribunal at least seven days before the hearing. Such evidence was not provided.

1. On 15 April 2019, the applicant wrote to the Tribunal stating that his wife, Mrs Amanjok Kaur Gill, is pregnant with their first child and her estimated due date is 24 September 2019. The applicant stated that his wife is suffering depression and that the applicant needed to be home to provide fulltime care for her.

1. The applicant provided supporting evidence in the form of a medical certificate from Mrs Gill’s treating physician, Dr Pauel Agual, stating that she needed the applicant’s fulltime emotional and physical support during her pregnancy. The applicant requested a postponement of the hearing for at least six months so that his wife could deliver the baby and recover her health.

1. The Tribunal carefully considered the request and decided not to postpone the hearing instead invited the applicant to appear by telephone.

1. At the hearing, the applicant was again requested to provide enrolment evidence to the Tribunal, such as a copy of a current certificate of enrolment. The applicant has not provided such evidence.

1. In sworn evidence before the Tribunal, the applicant confirmed that he was last enrolled in a Certificate III in Spoken and Written English, which he completed on 3 November 2017. The applicant further confirmed in sworn evidence that he was currently not enrolled in any course of study in Australia.  The Tribunal notes that in evidence at the hearing, the applicant indicated that he has not studied since completing this Certificate III course.

1. At the hearing, the applicant again requested an adjournment of the review for six months, in order to allow the applicant to take care of his wife fulltime and sort out his enrolment. The Tribunal carefully considered the request and has decided not to grant the adjournment.

1. The Tribunal considers the applicant has had sufficient time to finalise his enrolment. The applicant confirmed that he last completed a course in November 2017. The applicant stated that his wife is ill and this is why he was unable to study or arrange study. However, there is no evidence before the Tribunal that Mrs Gill’s condition caused the applicant to cease studying after the completion of the English certificate in November 2017.

1. Accordingly, there is no evidence before the Tribunal that the applicant is presently enrolled in any course of study.  Therefore, the Tribunal is not satisfied that at the time of this decision that the applicant is enrolled in a course of study and accordingly, clause 500.211 is not met.

1. 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. For these reasons I have concluded that the decision under review should be affirmed. The Tribunal affirms the decision not to grant the applicant a student (temporary) (class TU) visa. Insert findings and reasons, referring to the evidence on which the findings were based

DECISION

1. The Tribunal affirms the decision under review.

Meredith Jackson Member