Khedekar (Migration)

[2021] AATA 4325

Khedekar (Migration) [2021] AATA 4325 (10 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Swapnil Vasant Khedekar

CASE NUMBER:  1936229

HOME AFFAIRS REFERENCE(S):          BCC2019/5542520

MEMBER:Noelle Hossen

DATE:10 September 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 10 September 2021 at 12:52pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment status – no current enrolment in an approved course of study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.211

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 Home Affairs on 16 December 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 4 November 2019. At the time of application, Class TU contained two subclasses: 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.

3. The delegate in this case refused to grant the visa 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. On the 20 July 2021 the applicant was invited to provide further information to the Tribunal pursuant to Section 359(2) to the Tribunal prior to the hearing.

5. The applicant responded on the 20 July 2021. The Tribunal had various documents to consider for the hearing provided to the Tribunal by the applicant including but not limited to the following: 3 Current Certificates of Enrolment, evidence of Overseas health cover, Passport, Deposit of Funds Confirmation.

6. On the 20 August 2021 a written invitation to appear before the Tribunal was sent to the applicant . In that invitation the applicant was requested to provide evidence of enrolment in a full-time registered course to the Tribunal at least 7 days before the hearing.

7. The applicant responded on the 3 September 2021 and provided current Certificates of Enrolment, mark sheets and Certificate.

8. The applicant appeared before the Tribunal on the 9 September 2021 to give evidence and present arguments. The hearing was held with the assistance of an interpreter.

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

   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.

    Enrolment (cl.500.211)

11. 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.

12. ‘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.

13. At the hearing the applicant was informed that a basic requirement that he had to satisfy for a grant of a student visa was that he must be enrolled in a course of study in a registered course.

14. He was asked if he was still enrolled in the courses that he had provided Current Certificates of enrolment to the Tribunal. He stated in his oral evidence that he was not enrolled in any course of study as at the date of the hearing.

15. The applicant confirmed in sworn evidence that no current enrolment in an approved course of study exists. As such, there is no evidence before the Tribunal that the applicant is enrolled in any approved course of study. Therefore cl500.211 is not met.

16. 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.

17. 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.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Noelle Hossen
    Member