Kardey (Migration)

[2019] AATA 6284

Kardey (Migration) [2019] AATA 6284 (4 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kulvir Kaur Kardey
Mr Bikramjit Singh North
Miss Ravnit Kaur North

CASE NUMBER:  1718869

HOME AFFAIRS REFERENCE(S):          BCC2017/2511180

MEMBER:Steven Griffiths

DATE OF ORAL DECISION:  4 December 2019

DATE OF WRITTEN STATEMENT:         5 December 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Oral decision given 04 December 2019 at 2.46pm

Statement made on 05 December 2019 at 9:10am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –genuine temporary entrant criterion not met – currently not enrolled – no evidence of enrolment was provided–decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212
Education Services for Overseas Students Act 2000

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 Immigration and Border Protection on 10 August 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 14 July 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The Tribunal gave its decision on the review at the conclusion of the hearing held on 4 December 2019. The following are the reasons for that decision.

5. The applicant appeared before the Tribunal on 4 December 2019 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the secondary applicant, Mr. Bikramjit Singh North, and noted the other secondary applicant, Ms. Ravnit Kaur North, is a child and did not attend.   

6. The applicants were assisted by their registered migration agent, who did not attend the hearing.

7. On 18 October 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicants to provide all relevant information about the course(s) of study the primary applicant is undertaking and her entry and stay in Australia as a student in writing. The invitation was sent to the applicants registered migration agent, Mr. Pankaj Dumra, of Dumra Consulting Pty. Ltd., by email [email protected] and advised that, if the information was not provided in writing by 1 November 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. On 29 October 2019 the Tribunal wrote to the applicants inviting them to a hearing, pursuant to s.360(1) of the Act, scheduled for 4 December 2019 and providing the opportunity for any additional information that they may wish to rely upon to be provided by 26 November, 2019.

9. The Tribunal notes a response to the s.359(2) of the Act request for information was received on 1 November 2019.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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.

11. The Tribunal has read and had regard to information provided by the applicants to the Department (comprising 51 folios). The Tribunal has also read and had regard to the delegate’s decision record, a copy of which was provided to the Tribunal by the primary applicant with her application for review.

12. The Tribunal notes the delegate’s decision was based around compliance with cl.500.212 of the Regulations and if the applicant was a genuine temporary applicant for entry and stay as a student.

13. The primary applicant is a 39 year old female from India, who arrived in Australia in August 2009 on a Higher Education Sector visa (subclass 572), which was to cease on 17/8/11. On 15/08/11 she was placed on a bridging visa, with a further 572 visa issued on 19/09/11 and to cease 28/04/14. On 23/04/14 she was placed on a bridging visa, with a further 572 visa issued on 5/6/14 and to cease on 18/07/17. Since 14/07/17 she has been on a bridging visa.

14. The secondary applicants are the husband and daughter of the primary applicant.    

15. The Tribunal has read and had regard to information provided by the primary applicant, as the response to the s.359(2) request for information, to the Tribunal by email on 1 November 2017.

16. The Tribunal determines the issue in the case is whether the applicant satisfies the primary criteria contained in cl.500.211 of the Regulations, which states the following must be satisfied:-

    500.211 One of the following applies:

    (a)the applicant is enrolled in a course of study;

    (b)if the application is made in Australia – the applicant is seeking to remain in Australia because the relevant education institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

    (c)if the applicant is a Foreign Affairs student – the applicant has the support of the Foreign Affairs Minister for the grant of the visa;

17. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulation 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. The applicant did not claim to meet any of the alternative criteria of cl.500.211.

18. The Tribunal was advised by the applicant on 1 November 2019, in her response to the s.359(2) request for information, and confirmed in oral evidence at the hearing at 4 December 2019, that she is not currently enrolled in a course of study as required by cl.500.211.

19. At the hearing the primary applicant was given the opportunity to provide evidence of current enrolment in a course of study to the Tribunal. No evidence was provided.  

20. The Tribunal at the hearing considered a request from the primary applicant for additional time to obtain an enrolment in an approved course. In this context, the Tribunal notes the written invitation to appear before the Tribunal was sent to the applicant in advance of the scheduled hearing, and with the invitation the applicant was requested to provide evidence she may wish to rely upon at the hearing at least 7 days before hearing. No evidence was provided and the Tribunal confirmed that no additional time could be provided.

21. As such, the Tribunal cannot be satisfied that the criteria for a grant of a Subclass 500 (Student) visa are met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

22. Accordingly, the decision under review was affirmed, with the Tribunal making an oral decision at the hearing and confirming a written statement of reasons would be provided within 7 days of the hearing.

    DECISION

23. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Steven Griffiths
    Member