KALLURI (Migration)

[2018] AATA 5434

KALLURI (Migration) [2018] AATA 5434 (2 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hrudaya Subhakar KALLURI

CASE NUMBER:  1710550

DIBP REFERENCE(S):  BCC2017/708989

MEMBER:Mark Bishop

DATE AND TIME OF

ORAL DECISION AND REASONS:          2 August 2018 at 10:49 am (VIC time)

DATE OF WRITTEN RECORD:                31 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine student who intends genuinely to stay in Australia temporarily – not enrolled in a course of study – no evidence of enrolment provided –Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.218
Education Services for Overseas Students Act 2000

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 April 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 on2 August 2018 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 1710550 involving the applicant Mr Hrudaya Subhakar Kalluri. 

4. This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 April 2017 to refuse to grant you a student temporary class TU visa under section 65 of the Migration Act 1958, the Act.

5. Mr Kalluri, you applied for the visa on 21 February 2017 to undertake study in Australia.  At the time that the visa application was lodged the student temporary class TU visa contained two subclasses, subclass 500 student and subclass 590 student guardian. 

6. You applied for the visa to undertake study in Australia and you do not claim to meet the criteria for subclass 590 student guardian visa.

7. The delegate in your case 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 1994, the Regulations, because the delegate was not satisfied that you were a genuine student who intended genuinely to stay in Australia temporarily.

8. You provided a copy of the decision record to the tribunal and you indicated to the tribunal evidence that there were no faults or omissions in that decision record and the decision record, of course, contained references to your academic progress and visa history in Australia.

9. 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.

10. 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 you. The issue in the present case is whether you, the applicant, Mr Kalluri, is enrolled in a course of study, as required for the grant of a student visa.

11. Clause 500.211 relevantly requires that at the time of this decision the applicant, Mr Kalluri, is enrolled in a course of study, and that is set out in clause 500.211(a).  The applicant does not claim to meet any of the alternative criteria in clause 500.211.

12. Course of study is relevantly defined in clause 500.111 of the Regulations as a fulltime registered course.  Registered course is defined in rule 1.03 of the Regulations as a course of education or training provide by an institution, body or person that is registered under division 3 of part 2 of the Overseas Service for Overseas Students Act 2000 to provide the course to overseas students.

13. On 13 July 2018 a written invitation to attend the hearing today was sent to you via your migration agent.  In that invitation you were requested to provide evidence of enrolment in an approved course of study to the tribunal at least seven days before the scheduled date of the hearing.  You did not provide such evidence. 

14. Such evidence has still not been provided and you did not provide a copy of a certificate of enrolment to the tribunal.

15. At the hearing today you were again requested to provide this evidence to the tribunal such as a copy of your current certificate of enrolment or letter of enrolment in an approved course and you advised that you did not have a current certificate of enrolment and you were not the holder of a letter indicating enrolment in a course of study.

16. In your sworn evidence before the tribunal you confirmed that you were last enrolled in a Diploma of Management from 27 February 2017 until 27 February 2018.  Sorry, not a Diploma of Management, a Diploma of Project Management and you provided a statement of purpose to the tribunal to that effect.

17. You further confirmed in your sworn evidence that you have not been engaged in study from the conclusion of that course and you are currently not enrolled in an approved course and you do not have a valid offer of enrolment in any course of study in Australia at the moment.

18. Mr Kalluri outlined to the tribunal his recent experience with an arthritic condition and the pain that he had as a consequence of that condition.  And he outlined to the tribunal that had an impact upon his ability to study and that was a significant factor in his choosing not to enrol in an approved course.

19. Mr Kalluri also indicated to the tribunal that he been onshore in Australia from the beginning of January until the present time excluding a brief period in July when he went overseas for family matters and family concerns and the tribunal has no reason to reject this evidence.

20. But the bottom line is that since at least February or possibly as late as April of 2018 Mr Kalluri has not been enrolled in an approved course and has not held a certificate of enrolment.  Accordingly, there is no evidence before me that the applicant, Mr Kalluri, is now enrolled in or has a current offer of enrolment in any course of study.  Therefore, the tribunal is not satisfied that at the time of this decision that Mr Kalluri, the applicant is enrolled in a course of study and accordingly clause 500.211 is not met.

21. Given the above findings the tribunal finds that the criteria for the grant of a subclause 500 student visa is not met.  The applicant does not claim to meet the criteria for a subclause 590 student guardian visa.  And for these reasons I have concluded that the decision under review should be affirmed.  Accordingly, it is the decision of the tribunal that the tribunal affirms the decision not to grant the applicant a student temporary class TU visa.

    DECISION

22. The Tribunal affirms the decision under review.

    Mark Bishop
    Member