Jasvir Singh (Migration)

[2020] AATA 4329

Jasvir Singh (Migration) [2020] AATA 4329 (18 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jasvir Singh

CASE NUMBER:  1912910

HOME AFFAIRS REFERENCE(S):          BCC2019/658207

MEMBER:Andrew George

DATE:18 August 2020

PLACE OF DECISION:  Darwin

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.211 of Schedule 2 to the Regulations.

Statement made on 18 August 2020 at 2:21pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – current enrolment – decision under review remitted    

LEGISLATION

Migration Act 1958, ss 65, 363
Migration Regulations 1994, Schedule 2 cl 500.211; r 1.03

CASES

Singh v MIBP [2017] FCAFC 67

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 May 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 February 2019. At the time of 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.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because there was no evidence before the delegate that the applicant was enrolled in a course of study.

4. The applicant is represented by KNA Global. The applicant appeared before the Tribunal on 4 August 2020 when this matter was listed for hearing. The hearing was listed with case number 2002257, which regards a visa cancellation. The hearing was adjourned until 3 September 2020 so that the applicant could comply with the practice directions, particularly regarding case number 2002257. Nevertheless, and on the material already submitted to the Tribunal in preparation for the listing on 4 August 2020, the Tribunal has formed the view that the applicant should succeed and he is now no longer entitled to appear at a hearing in this matter.[1]

   [1] ss.360(2)(a), 360(3), 363A Migration Act 1958 (Cth); Singh v MIBP [2017] FCAFC 67 (North, Bromberg and Bromwich, 27 April 2017), at [56].

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.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.

   Enrolment (cl.500.211)

7. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). 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’. ‘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, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

9. The Tribunal has before it an Overseas Student Confirmation-of-Enrolment certificate with reference B6573A85. According to this certificate, the applicant is currently enrolled in a Bachelor of Computer Science at Charles Darwin University. His course start date is 2 March 2020 and his course end date is 30 November 2021. The Tribunal accepts this evidence and is therefore satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is met.

10. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

11. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.211 of Schedule 2 to the Regulations.

    Andrew George
    Member