Gurung (Migration)

[2020] AATA 3581

Gurung (Migration) [2020] AATA 3581 (10 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Man Bahadur Gurung
Mrs Soma Gurung

CASE NUMBER:  1919725

DIBP REFERENCE(S):  BCC2019/2690425

MEMBER:Peter Booth

DATE AND TIME OF

ORAL DECISION AND REASONS:         10 August 2020 at 3:32 pm (VIC time)

DATE OF WRITTEN RECORD:                26 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 26 August 2020 at 8:20am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entry and student – no evidence of current enrolment – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 5 July 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 10 August 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 matter number 1919725 in the matter of Gurung.  This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 July 2019 to refuse to grant you a Student visa pursuant to s.65 of the Act.

4. You applied for the visa on 23 May 2019 to undertake study in Australia.  At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained two subclasses:  Subclass 500 and Subclass 590.  You applied for the visa to undertake study in Australia and do not claim to meet the criteria for a Subclass 590 visa. 

5. The delegate, in your case, refused to grant the visa on the basis that you did not satisfy the requirements for cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations), because the delegate was not satisfied that you were a genuine student who intends genuinely to stay in Australia temporarily.

6. You appeared before the Tribunal today to give evidence and present arguments.  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 this decision, you meet the enrolment requirements for a Student visa.

7. The criteria for a Subclass 500 Student visa are set out in Part 500 of Schedule 2 to the Regulations. 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. 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.

9. ‘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 pursuant to Division 3 of Part 2 of the Education Services for Overseas Students Act2000 to provide the course to overseas students.

10. On 24 July 2020, a written invitation to attend the hearing today was sent to you.  In that invitation, you were requested to provide evidence of enrolment in an approved course of study to the Tribunal at least seven days prior to the scheduled date of the hearing.  No such evidence has been provided.

11. At the hearing today, you were again requested to provide evidence to the Tribunal, such as a copy of your current certificate of enrolment. 

12. In your sworn evidence before the Tribunal, you have confirmed that you were last enrolled in a Diploma of Leadership and Management in approximately November 2019.  You further confirmed in your evidence that you are not currently enrolled in any course of study in Australia.  Accordingly, there is no evidence before me that you are now enrolled in any course of study. 

13. Therefore, 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.

14. For these reasons, the Tribunal has concluded that the decision under review should be affirmed. 

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

16. This decision is made on 10 August 2020 at 3:32 pm.

    DECISION

17. The Tribunal affirms the decisions under review.

    Peter Booth
    Member