Jandu (Migration)

[2019] AATA 1994

Jandu (Migration) [2019] AATA 1994 (6 June 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Amninderpal Singh Jandu

CASE NUMBER:  1805197

DIBP REFERENCE(S):  BCC2017/4663769

MEMBER:  Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:          6 June 2019 at 9:42 am (VIC time)

DATE OF WRITTEN RECORD:                19 June 2019

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 19 June 2019 at 1:16pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – not enrolled in a course of study 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 on 14 February 2018 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 6 June 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 oral statement of the decision and reasons of the Administrative Appeals Tribunal in case number 1805197 in relation to an application for review brought by Amninderpal Jandu.

4. The applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister on 14 February 2018 refusing to grant him a student visa. He applied for this visa on 7 December 2017. The applicable regulations that applied at the time classify this type of visa as a student temporary class TU subclass 500 visa. Such visas are issued under the general power to issue visas conferred on the Minister or his delegate by section 65 of the Migration Act. If granted a student visa permits a non-Australian citizen to enter and remain in Australia to study fulltime on a temporary basis. An applicant’s family members or guardian may also join in the application. However, in this particular instance there is only one applicant. It is he who must satisfy the primary criteria as set out in the Regulations relating to the grant of a student visa.

5. While the 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 today’s hearing that he did not meet other criteria that must be satisfied for the grant of a visa.

6. Before I go on I should indicate that the hearing today was conducted with the assistance of an interpreter in the Punjabi and English languages although it is apparent that the applicant did not need to draw upon her for the purposes of this hearing because he indicated that he was able to understand and he could communicate in English sufficiently well.

7. So the applicant appeared before the tribunal today to give evidence and he presented any arguments that he could. And so I turn now back to the issue that is before the tribunal today. As noted, while the issue before the delegate was whether or not the applicant was genuine for the purposes of clause 500.212, the issue that came before the tribunal today was related to another regulatory requirement under the Regulations.

8. Clause 500.211 of the Regulations requires an applicant to be enrolled in a registered course of study at the time the tribunal makes its decision. At the commencement of today’s hearing the tribunal inquired of the applicant as to whether he was currently enrolled in a registered course of study. In oral evidence the applicant stated that he was not. He further stated that his course provider had cancelled his latest confirmation of enrolment some time last year.

9. The tribunal asked when was the last time he actually attended any class. He also indicated that it was some time last year. He was unable to be more specific than that. Ultimately when the tribunal asked if he was able to produce any documentary evidence which might demonstrate a current enrolment he firmly indicated that he was unable to do so.

   Case Number 1805197  Page 2 of 3

1. The applicant confirmed that he received the letter from the Administrative Appeals Tribunal inviting him to this hearing several weeks ago. He also indicated he had read that letter. He also accepted that that letter indicated that for his application on review to progress he needed to produce evidence of enrolment. In spite of all of this no such evidence has been produced.

2. In all of the circumstances it is clear that the applicant does not meet the essential regulatory requirements as stated in clause 500.211 of the Regulations. This has become determinative of the case now before the tribunal. There is no evidence of enrolment and he does not satisfy clause 500.211. There is no point for the tribunal to proceed to consider the criteria under clause 500.212, which was the pivotal issue in the delegate’s decision.

3. In case number 1805197 the tribunal is not satisfied that the applicant meets the regulatory criteria for the grant of a student visa. Accordingly, the tribunal affirms the decision not to grant the applicant a student temporary class TU visa.

   DECISION

4. The Tribunal affirms the decision under review.

   Dr Jason Harkess
   Member

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