Handa (Migration)

[2019] AATA 2619

Handa (Migration) [2019] AATA 2619 (28 March 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Inderjeet Handa

CASE NUMBER:  1722555

DIBP REFERENCE(S):  BCC2017/1959335

MEMBER:  Lisa Hannon

DATE AND TIME OF

ORAL DECISION AND REASONS:          28 March 2019 at 2:39 pm (VIC time)

DATE OF WRITTEN RECORD:                28 May 2019

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 28 May 2019 at 3:06pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – no evidence of enrolment at 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 and Border Protection on 4 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 28 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. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 September 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under section 65 of the Migration Act 1958.

4. Mr Handa applied for the visa on 2 June 2017. At the time of the 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.

5. 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 (Regulations), because the delegate was not satisfied that the applicant was a genuine student who intends to genuinely stay in Australia temporarily.

6. The applicant, Mr Handa, appeared before the Tribunal today to give evidence and to present arguments.

7. While the issue before the delegate was whether the applicant is a genuine temporary entrant, arising from the applicant’s evidence, the issue before the Tribunal today became whether, at the time of decision, the applicant meets the enrolment requirements of clause 500.211(a) for a student visa.

8. The applicant acknowledged understanding that the determinative issue before the Tribunal had changed, and the applicant was given the opportunity to address me in relation to the determinative issue of whether he had a current enrolment in a course of study.

9. 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.

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

11. A course of study is relevantly defined in clause 500.111 of the Regulations as a” fulltime registered course”. Registered course is defined in rule 103 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 the Education Services for Overseas Students Act 2000 to provide the course of overseas students.

12. On 19 February 2019 a written invitation to appear before the Tribunal was sent to the applicant. In that invitation, the applicant was requested to provide evidence of enrolment in

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a fulltime registered course to the tribunal at least seven days before the hearing. Such evidence has not been provided.

1. At the hearing the applicant was again given the opportunity to provide enrolment evidence to the tribunal, such as a copy of a current confirmation of enrolment certificate. No such evidence was forthcoming. The applicant candidly concedes that he had finished or completed his studies, and he is not currently enrolled in a course of study, and he confirmed in his sworn evidence that no current enrolment in an approved course of study exists.

2. As such, there is no evidence before the tribunal that the applicant Mr Handa is enrolled in an approved course of study and, therefore, clause 500.211 is not met.

3. Given the above findings, I find 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, the Tribunal has concluded that the decision under review should be affirmed and the decision is that I affirm the decision not to grant the applicant a student temporary class TU visa.

4. Mr Handa that concludes the hearing. The decision that I have then made will be confirmed to you by email and I understand that that will be sent to you today. That is now the end of the hearing.

   DECISION

5. The Tribunal affirms the decision under review.

   Lisa Hannon
   Member

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