Gill (Migration)

[2019] AATA 2909

Gill (Migration) [2019] AATA 2909 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harpreet Singh Gill

CASE NUMBER:  1723417

DIBP REFERENCE(S):  BCC2017/1540185

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:          26 March 2019 at 9:43 am (VIC time)

DATE OF WRITTEN RECORD:                8 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 08 April 2019 at 11:01am

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

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

APPLICATION FOR REVIEW

1.    This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 September 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2.    At the hearing on 26 March 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

3. The applicant is a citizen of India. The applicant seeks review of a decision made by a delegate of the Minister of Immigration and Border Protection on 12 September 2017, refusing to grant the applicant a student temporary visa under section 65 of the Migration Act1958. 

4. The applicant applied for the visa on 28 April 2017. The delegate in this case 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), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the applicant, and to the tribunal with the review application.

5. The applicant appeared before the tribunal to give evidence and present arguments. While the determinative issue before the delegate was whether the applicant met the genuine temporary entrant criteria under clause 500.212 of the Regulations, it became clear at the outset of the hearing that the applicant did not meet other criteria that must be satisfied for the grant of a student visa.

6. Clause 500.211 of the Regulations requires the applicant to be enrolled in a course of study at the time the tribunal makes it decision. The applicant was unable to produce any evidence of a current confirmation of enrolment to the tribunal at the hearing which would establish that he meets this essential requirement. The applicant also stated in evidence that he is not currently enrolled in any course of study with an education provider.

7. In these circumstances, the question of whether the applicant meets the criteria under clause 500.211 has become determinative for the purposes of the case now before the tribunal. If the applicant does not meet the criteria under clause 500.211, then there is no utility in the tribunal proceeding to consider whether the genuine temporary entrant criteria are met under clause 500.212.

8. The applicant does not meet the regulatory requirements for the grant of a student visa because there is no evidence satisfying any of the criteria in clause 500.211 of the Regulations.

DECISION

9.    The Tribunal affirms the decision under review.

Dr Jason Harkess
Member