Kaur (Migration)

[2019] AATA 5228

Kaur (Migration) [2019] AATA 5228 (16 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Mandeep Kaur
Mr Gurpreet Singh

CASE NUMBER:  1810345

DIBP REFERENCE(S):  BCC2018/782262

MEMBER:Michael Biviano

DATE AND TIME OF

ORAL DECISION AND REASONS:          16 August 2019 at 3:05 pm (VIC time)

DATE OF WRITTEN RECORD:                3 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 03 September 2019 at 3:09pm

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 decisions made by a delegate of the Minister for Home Affairs on 26 March 2018 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under section 65 of the Migration Act 1958 (the Act).

2. At the hearing on 16 August 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 application for a review is brought by the primary applicant (applicant) and her husband, the secondary applicant.

4. The applicants applied for the visas on 16 February 2018.  At the time of the application Class TU contained two subclasses.  Subclass 500 (Student) and subclass 590 (Student Guardian).  The applicants applied for the visa to undertake study in Australia and they do not claim to meet the criteria for a subclass 590 (Student Guardian) visa. 

5. 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 (a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the reason that the applicant was not a genuine applicant for entry and stay as a student because she did not intend to stay temporarily in Australia.

6. Further, the delegate also found that as the applicant had not met the requirements of cl.500.212 of Schedule 2 to the Regulations, then the secondary applicant did not meet the requirements of cl.500.311 of Schedule 2 to the Regulations and he also does not meet the criteria for the grant of a student visa.

7. The applicant appeared before the Tribunal on 16 August 2019 to give evidence and present arguments on behalf of the applicants.

8. It is appropriate to highlight that the decision-maker is not required to make the applicants case, it is for the applicants to satisfy the Tribunal that the requirements of the Act and the Regulations have been met.  Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicants in as much detail as is necessary to enable the examiner to establish the relevant facts.

9. During the course of the hearing the applicant gave evidence that she was not at the date of the hearing, presently enrolled in a course of study.  While the issue before the delegate was whether the applicant is a genuine temporary entrant in Australia, arising from the applicant’s evidence, the issue before the Tribunal changed and became whether, at the time of the decision, the applicant meets the enrolment requirement in cl.500.211 (a) for a student visa.

10. The primary applicant acknowledged that she understood that the determinative issue before the Tribunal had changed.  The applicant was given an opportunity to address the Tribunal in relation to this determinative issue.

    Consideration of claims in evidence.

11. 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 through 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 a genuine applicant for entry and stay as a student.

12. Cl.500.211 relevantly requires that at the time of the 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. 

13. “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.

14. Prior to the hearing, on 25 June 2019, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting the applicants to provide information about the courses or course of study the applicant was undertaking and her entry and stay in Australia as a student in writing.   The invitation relevantly stated:

    ‘As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for one of you (the main applicant) to be:

    · enrolled in a registered course of studies; and

    · a genuine applicant for entry and stay as a student.

    Accordingly, you will need to provide sufficient evidence to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study the main applicant is undertaking and the entry and stay in Australia as a student.’

15. The applicant filed a Response on 30 July 2019 within the time limits in which to file the Response.  The Response was deficient in relation to what courses were being studied by the applicant and the applicant gave evidence that the deficiency in the Response arose because of her belief that the information that had been requested was already on the Department file.

16. Relevantly, the Response stated that the applicant does not have a current confirmation of enrolment (COE) in a registered course of study. 

17. On 1 August 2019 the Tribunal sent a letter to the applicants, being an invitation to attend the hearing in this matter.  The letter relevantly provided at page 2:

    ‘In addition please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:

    1. A copy of your current Confirmation of Enrolment (COE) or other documents that show that you are currently enrolled in a course of study as defined by Clause 500.111 of schedule 2 to the Migration Regulations 1994 (the Regulation) as is required for the grant of a student visa.’

18. Prior to the hearing the applicant did not provide any details of any current enrolment in a course of study and did not include any current Confirmation of Enrolment certificates.

19. Immediately prior to the hearing, on 16 August 2019, the applicant did provide the Tribunal with a Confirmation of Enrolment certificate for a Diploma of Automotive Management with Training Australia First in which the date of enrolment was 14 February 2018 and the course commencement date was 21 April 2018 and the expiry date was 29 December 2018.

20. The applicant gave evidence that notwithstanding that the Confirmation of Enrolment certificate had been obtained, she did not commence that course and her enrolment in that course lapsed.  The applicant further gave evidence that she is not currently enrolled in a course of study.

21. The applicant also gave evidence that she was last enrolled in a registered course of study, when she was enrolled in the Diploma of Automotive Management with Training Australia First.  When the Tribunal questioned the applicant about whether she understood the consequence of not being enrolled in a course of study she replied that she understood. 

22. In the circumstances the Tribunal is not satisfied at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 of Schedule 2 of the Regulations is not met.

23. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met.  The applicant does not claim to meet any of the criteria for a Subclass 590 (Student Guardian) visa.

24. Further, the primary applicant had not met the requirements of cl.500.211 of Schedule 2 of the Regulations then the dependant applicant does not meet the requirements of cl.500.311 of Schedule 2 to the Regulations and he also does not meet the criteria for the grant of the student visa.

25. Accordingly the decision under review must be affirmed.

    DECISION

26. The Tribunal affirms the decision not to grant the applicant’s student temporary Class TU visas.

    Michael Biviano
    Member