KAUR (Migration)

[2018] AATA 4337

KAUR (Migration) [2018] AATA 4337 (18 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs RUPINDERJIT KAUR
Mr LALIT KUMAR
Master VRISHAB GOGNA

CASE NUMBER:  1711353

HOME AFFAIRS REFERENCE(S):           BCC2016/3956554

MEMBER:Wendy Banfield

DATE:18 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 18 September 2018 at 10:43pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 – Genuine temporary entrant – No evidence of enrolment – Several years in Australia – Various courses completed – Decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 500.212, r 1.03

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 11 May 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 24 November 2016. 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) because it was determined the genuine temporary entrant criteria had not been met.

   Background

4. The primary applicant is a citizen of India and is currently 37 years old. The secondary applicants are the husband and son of the primary applicant. The applicant came to Australia on 8 May 2009 to study Disability. Since arriving in Australia the applicant has completed courses in Disability, Management, Human Resource Management, Business and Project Management. At the time of decision, the applicant was not enrolled in a course of study.

5. The primary applicant appeared before the Tribunal by phone on 12 September 2018 to give evidence and present arguments.

6. The applicants were assisted in relation to the review by their registered migration agent.

   Evidence of the primary applicant

7. The applicant stated she completed a Bachelor degree in Medicine in her home country in 2008 and decided to apply to study a Diploma of Disability in Australia from 2009 to 2011. She said she plans to run day services for disability clients in India. After the Diploma course the applicant said it was suggested she undertake a Bachelor of Social Science and because of the degree she already had, it could be completed in a short time. However, according to the applicant the university discontinued offering the course on campus which meant she could not continue. 

8. The applicant declared she took all her other courses on the advice of her agent because it would assist her in her goals. The applicant said she wants to continue to study Community Services because it is related and essential to her plans. She said she began the course in 2016 and continued until August 2017 when she was pregnant. She then suffered a miscarriage and deferred her course while she went to India because her mental health was affected.

9. The Tribunal asked if the applicant had returned to her course and she said she had been depressed after suffering two miscarriages, once in July 2017 and again in April 2018. Due to her depression the applicant stated she was prescribed medication by her doctor which is gradually being reduced. The applicant said she plans to re-enrol in the Diploma of Community Services after she has a further medical assessment regarding her medication for depression. The Tribunal referred the applicant to a letter from her education provider, Australian Academy of Management and Science that states she was granted leave until 31 October 2017 and was required to report at the start of the next term on 1 November 2017. The applicant claimed she did return but was depressed due to her miscarriage. The Tribunal put to the applicant that it appeared her enrolment in the Diploma of Community Services was not current and she said it was not cancelled, but she had suffered a second miscarriage in 2018. She said she has spoken to the college and will be able to get a new COE.

10. The Tribunal advised the applicant that in order to be granted a student visa, she must be enrolled in an approved course of study. She said she had paid for the course previously and did not want to waste her money until her medication is stopped and she can continue the course. The Tribunal again advised the applicant that the Migration Regulations require an applicant to be enrolled before they can be granted a student visa and she cannot be granted a visa on the basis that she will then go and seek enrolment. The applicant said she can go and obtain enrolment if she is given time to do so.

11. The Tribunal expressed concern that if the applicant obtains enrolment in a course, she may still not meet the genuine temporary entrant criteria because she has been in Australia since 2009 and has not clearly explained why she wants to complete a Diploma in Community Services given the extent of the qualifications she already has. The applicant explained the nature of the business she wants to open in India which involves running a day program and taking disabled clients out in the community. She said her other qualifications and experience to date are about disability, not community work. The Tribunal asked about her qualifications in Business, Management, Human Resources and Project Management and why they were not enough, together with her work in disability services, to open a disability service. She insisted they were important to her business plan but different to community services work.

12. In Australia the applicant has her husband and 9 year old son (who was born in Australia) while her parents and sibling live in India. The applicant declared she applied for a Subclass 190 Skilled Nominated visa last year but it was not successful and is the subject of review before the Tribunal (yet to be determined). The applicant requested the student visa be issued as she only has four months left of her course.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

15. 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.

16. ‘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.

17. The applicant was invited to attend a hearing scheduled for 12 September 2018. The invitation asked the applicant to provide a copy of a current Certificate of Enrolment (COE) or other documents that show she is currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994. The applicant was advised that a COE is required for the grant of a student visa. The applicant did not submit a COE as requested.

18. At the Tribunal hearing on 12 September the applicant was advised that in order to be eligible for a student visa, she must be enrolled in an approved course of study at the time of decision. The applicant did not provide evidence of current enrolment or other documents that show she is enrolled in an approved course of study. The applicant gave evidence about her reasons for not being enrolled which was due to having suffered miscarriages in mid-2017 and in April 2018. Medical evidence in support of these matters was submitted that consists of an ACT Health Record dated 12 July 2017 for a medical procedure and Diagnostic Imaging Report dated 25 May 2018. This evidence is consistent with the applicant’s evidence of miscarriages and the Tribunal accepts the applicant’s submissions in that regard.

19. The applicant provided a Medical Certificate dated 24 August 2018 stating she has been prescribed medication for depression and anxiety. She also submitted a letter from her education provider, the Australian Academy of Management and Science dated 8 August 2017 approving her leave until 31 October 2017 but requiring her to attend at the start of the next term on 1 November 2017. The applicant said she did return but could not continue due to her depression. There is no evidence before the Tribunal that the applicant has been unable to resume her studies after her approved leave until 31 October last year.  As stated, the Tribunal accepts the applicant suffered two unfortunate miscarriages but she did not resume her studies after taking leave in 2017 or at any time after April or May in 2018. The applicant said during the hearing that she could re-enrol in her Diploma course but she has not provided satisfactory reasons as to why she has not done so to date.

20. The Tribunal notes the applicant said she had not re-enrolled because she did not want to waste her money until her medication is stopped and she can continue the course. However, no evidence was submitted to indicate the applicant is unable to study due to her prescribed medication. The applicant also said during the hearing that she is able to re-enrol in her course if she is given time to do so. The Tribunal does not consider it appropriate to allow the applicant additional time to re-enrol since she has had ample opportunity to do so prior to the hearing. Also, since the applicant has said she needs to cease her medication before she can continue her course, there is no independent evidence or indication of when that might be. The applicant requested that she be granted a student visa to allow her to complete her Diploma course but as was explained to her, enrolment in a course of study is a mandatory criteria that must be met at the time of decision.

21. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

22. 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 the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    Member of Family Unit – Secondary visa applicant

23. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria.  Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

24. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the secondary applicants are unable to meet the criteria because they are not members of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.500.211.

    DECISION

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

    Wendy Banfield
    Member