Gottimukkala (Migration)

[2020] AATA 5675

Gottimukkala (Migration) [2020] AATA 5675 (16 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Manhar Gottimukkala
Mrs Rohita Gongada

CASE NUMBER:  1918848

DIBP REFERENCE(S):  BCC2019/2242780

MEMBER:Elizabeth Tueno

DATE AND TIME OF

ORAL DECISION AND REASONS:         16 September 2020 at 10:50 am (VIC time)

DATE OF WRITTEN RECORD:                21 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 21 September 2020 at 2:15pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –genuine temporary entrant criterion not met –no evidence of current enrolment – confirmation of enrolment not provided– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 500.211

Education Services for Overseas Students Act 2000

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 24 June 2019 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 16 September 2020 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. This is an oral decision in case number 1918848 for Mr Manhar Gottimukkala and Ms Rahita Gongada.

4. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 June 2019 to refuse to grant you a Student (Temporary) (Class TU) visa under section 65 of the Migration Act 1958. You applied for this visa on 24 April 2019 to undertake study in Australia.

5. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained two subclasses, a Subclass 500 Student Visa and Subclass 590 Student Guardian Visa.  You do not claim to meet the criteria for a Subclass 590 Student Guardian Visa. 

6. The delegate refused to grant the visa on the basis that you did not satisfy the requirements of clause 500.212 of schedule 2 to the Migration Regulations. The delegate was not satisfied that you are a genuine student who intends genuinely to stay in Australia temporarily.

7. You appeared before the tribunal today to give evidence and present arguments.  You also appeared before the tribunal on 8 September 2020 and as a result of the issues raised by the tribunal, the hearing was adjourned until today to allow you time to obtain further evidence of your enrolment.

8. You have been represented in relation to the review by your registered migration agent, although he has not attended the hearing today.

9. While the issue before the Delegate was whether you are a genuine temporary entrant, the issue before the tribunal now is whether, at the time of decision, you meet the enrolment requirements 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.

10. The issue in the present case is whether you are 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 that you be enrolled in a course of study.  You do not claim to meet any of the alternative criteria in clause 500.211.

11. ‘Course of study’ is relevantly defined in clause 500.111 of the Regulations as ‘a full-time registered course.’  ‘Registered course’ is defined as

    A course of education or training provided by an institution, body or person that is registered under the Education Services for Overseas Students at 2000 to provide the course to overseas students.

12. On 24 August 2020 a written invitation to attend a hearing on 8 September 2020 was sent to you via your migration agent.  In that invitation you were requested to provide evidence of enrolment in a full-time registered course to the tribunal at least seven days prior to the hearing.  Such evidence was not provided.  What you did provide to the tribunal prior to that hearing was a training plan for the Diploma of Leadership and Management course, a confirmation of enrolment in the Diploma of Leadership and Management course which commenced on 10 January 2020 and ended on 21 August 2020.  You also provided the tribunal with a genuine temporary entrant letter addressing the temporary entrant criterium. 

13. At the hearing on 8 September 2020 your enrolment was raised as an issue.  It was noted by the tribunal that your enrolment in the Diploma of Leadership and Management appeared to have ceased on 21 August 2020, when the course ended.  You explained to the tribunal that your enrolment had been extended by the education provider.  However, you were unable to provide documentary evidence of that extension.  The hearing was adjourned to today, to allow you to provide evidence of this extension.

14. Prior to today’s hearing a letter was sent to you via your registered migration agent on 10 September 2020 advising you of today’s resumption of the adjourned hearing.

15. At the hearing today you advised that you had contacted your education provider following the hearing on the same day as the hearing, on 8 September 2020.  You said that it was confirmed for you that the course had been verbally extended to 2 October 2020 and that the college told you that they cannot provide any documents confirming this extension.  You said that they also were requesting a further fee to be paid to allow you to complete the course.

16. The tribunal put information to you about your enrolment pursuant to section 359AA and outlined information obtained about your enrolment from PRISMS records.  The PRISMS records indicated that the Diploma of Leadership and Management course ended on 21 August 2020 and that the course had been finished. 

17. You were invited to comment or respond to the information orally or in writing and you were advised that you could answer now or seek additional time to comment or respond to the information.  You were asked if you needed five or ten minutes to consider the PRISMS records and how you wished to respond.  You were advised that if you sought additional time, the tribunal would need to consider whether you reasonably needed that additional time to comment on or respond to the information.  You provided a response at the hearing, which was to confirm that you had received a verbal extension of your course for a couple of weeks. 

18. The tribunal has considered your oral evidence about the extension of your enrolment in the Diploma of Leadership and Management course.  It also takes into account the documents before the tribunal in relation to your enrolment.  The documents overwhelmingly indicate that your enrolment in the Diploma of Leadership and Management course came to an end on 21 August 2020.

19. The training plan that you provided for this course sets out the units of the course and that not a single one of the units has an end date beyond 21 August 2020.  Your confirmation of enrolment provided to the tribunal confirms the end date of 21 August 2020 and the PRISMS records obtained by the tribunal today, and as explained to you at the hearing today, shows that the Diploma of Leadership and Management course was finished and ended on 21 August 2020.

20. There is no documentary evidence that supports your assertion that the course has been extended for a couple of weeks.  The tribunal considers that if the education provider has extended your enrolment, then it is a reasonable expectation that they would be able provide documentary evidence to that effect.

21. Accordingly, there is insufficient evidence before the tribunal that you are enrolled in any course of study as at today’s hearing date.  Therefore, the tribunal is not satisfied that at the time of this decision that you are enrolled in a course of study and accordingly clause 500.211 is not met.

22. Given these findings the tribunal finds that the criteria for the grant of a Subclass 500 Student visa are not met.  As already confirmed, you do not claim to meet the criteria for a Subclass 590 Student Guardian visa.

23. For these reasons the tribunal finds that the decision under review should be affirmed.  The tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.  It follows that the tribunal also affirms the delegate’s decision in relation to the second-named applicant.

    DECISION

24. The Tribunal affirms the decisions under review.

    Elizabeth Tueno
    Member