Kapoor (Migration)

[2019] AATA 4697

Kapoor (Migration) [2019] AATA 4697 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parth Kapoor

CASE NUMBER:  1704120

DIBP REFERENCE(S):  BCC2016/3551625

MEMBER:Adrienne Millbank

DATE AND TIME OF

ORAL DECISION AND REASONS:          26 February 2019 at 11:35 am (QLD time)

DATE OF WRITTEN RECORD:                13 March 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 13 March 2019 at 12:41pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in course of study – enrolment cancelled for non-commencement of studies – no current enrolment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 347(1)(b), 494C

Migration Regulations 1994 (Cth), Schedule 2, cl 500.211, 500.214

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 February 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 26 February 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 decision in case number 1704120.  This is an application for review of a decision made a delegate of the Minister of Immigration on 16 February 2017 to refuse to grant the applicant a Student (Temporary)(class TU) (Subclass 500)visa under section 65 of the Act.  The applicant applied for the visa on 25 October 2016 to undertake study in Australia.

4. At the time the visa application was lodged, a Student (Temporary) (class TU) visa contained two sub-classes: 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. The delegate in the applicant’s case refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. The delegate was not satisfied that the applicant had provided evidence of his financial capacity as required by cl.500.214(3). The applicant appeared before the Tribunal on 26 February 2019 to give evidence and present arguments. While the issue before the delegate was whether the applicant met the financial requirements for a student visa, the issue before the Tribunal now is whether at the time of the decision the applicant meets the enrolment requirements for a Student visa.

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. 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.

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. Course of study is relevantly defined in cl.500.111 of the Regulations as a 'full-time registered course'. A registered course is defined in r.1.03 of the Regulations as a course of educational training provided by an institution, body or person that is registered under the Education Services for Overseas Students Act 2000 to provide the course to overseas students.

8. On 24 January 2019, a written invitation to attend the hearing was sent to the applicant by his then migration agent.  In that invitation, the applicant was requested to provide evidence of enrolment in a full-time registered course to the Tribunal at least seven days before the hearing.  Such evidence has not been provided.  In a written submission dated 19 February 2019 provided to the Tribunal, the applicant stated that he was unable to provide a confirmation of the enrolment because the applicant got caught up with drug activities unwillingly through a former friend and flatmate.

9. The applicant also stated that he received poor advice from a former migration agent regarding his course enrolments and the evidence required by the Department and that the poor advice the applicant received contributed to his course enrolments being cancelled.  In the applicant’s sworn evidence before the Tribunal, he confirmed that he was last enrolled in a Diploma of Hospitality and Management course and that this enrolment was cancelled on 13 November 2018 for the reason of non-commencement of studies.

10. The applicant further confirmed in his sworn evidence he was not enrolled in any course of study in Australia.  Accordingly, there is no evidence before me that the applicant is enrolled in any course of study.  Therefore the Tribunal is not satisfied that at the time of this decision that the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.  Given the above findings, the Tribunal finds that the criteria for the grant of a Student (Temporary) (Class TU) Subclass 500 visa are not met.

11. As confirmed in the hearing, the applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian)visa.  For these reasons, I have concluded that the decision under review should be affirmed.  The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa. 

    DECISION

12. The Tribunal affirms the decision under review.

    Adrienne Millbank
    Member