Kaur (Migration)

[2019] AATA 1453

Kaur (Migration) [2019] AATA 1453 (11 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Hardeep Kaur

CASE NUMBER:  1833619

DIBP REFERENCE(S):  BCC2018/1607545

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          11 April 2019 at 11:29 am (VIC time)

DATE OF WRITTEN RECORD:                29 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

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 a decision made by a delegate of the Minister for Immigration on 29 October 2018 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 11 April 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. MEMBER:  To be eligible for the grant of a student visa, applicants must satisfy a range of criteria set out in the Regulations.  To be a genuine temporary entrant you must be a genuine student and it must be your intention to remain in Australia temporarily.

4. You applied for a student visa on 10 April 2018.  Your application was refused on 29 October 2018 because the delegate was not satisfied you met the genuine temporary entrant requirements.  In your application where it asked you to provide evidence of you being a genuine temporary entrant you said “I will attach a letter” but you did not provide any such evidence.

5. With the invitation to today’s hearing, noting your application was refused because the delegate found you were not a genuine temporary entrant, we advised you we would assess whether you are a genuine applicant for entry and stay, which was the reason for the delegate’s decision.  The letter stated in part, “relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached. Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No. 69.

6. You did not provide any response to that request and you have told today’s hearing that having been here for over 10 years it would be really difficult to go home.  This statement and other evidence you provided gives every indication that you are not a temporary entrant.

7. However, your decision was refused by the Department and you appealed that decision to be reviewed by this Tribunal. 

8. The role of the Tribunal is to conduct a de novo review meaning a new review of your application and consider whether you are eligible for the grant of a student visa. 

9. While your visa was refused because the delegate found you did not satisfy clause 500.212 and the delegate was not satisfied you were a genuine temporary entrant, you have today told the Tribunal you are not currently enrolled, do not hold an offer of enrolment.

10. As was explained in the letter sent with the hearing invitation, which requested you to provide evidence of enrolment, it said “Please provide a copy of your current confirmation of enrolment or other documents that show you are currently enrolled in a course of study as defined in clause 500.111 of schedule 2 to the Migration Regulations, as is required for the grant of a student visa”.

11. Current enrolment is a prerequisite for the grant of a visa.  It is only when someone is enrolled is it possible to work out a range of other evidence required, for example, how much finances are required to cover the cost of proposed course/s and how long they are going to live here, their living expenses, and how long do we need to have overseas student health cover which is required for the period of an applicant’s intended stay, et cetera et cetera.

12. As you are not currently enrolled and do not hold a current offer of enrolment you do not satisfy clause 500.211 and as you do not satisfy clause 500.211 you are not eligible for the grant of a visa. 

    In the circumstances, the Tribunal does not intend to consider whether you meet the genuine temporary entrant requirements for which you provided no evidence when requested.  So as you do not meet clause 500.211, which is a prerequisite for the grant of a visa it is the decision of this Tribunal to affirm the decision under review.

    DECISION

13. The Tribunal affirms the decision under review.

    Tim Connellan
    Member