KHOSA (Migration)

[2018] AATA 2021

KHOSA (Migration) [2018] AATA 2021 (28 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr KARAMVIR SINGH KHOSA

CASE NUMBER:  1619290

DIBP REFERENCE(S):  BCC2016/3369831

MEMBERS:M. Jackson (Presiding)

P. Wood

DATE AND TIME OF

ORAL DECISION AND REASONS:        28 March 2018 at 4:44 pm (QLD time)

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 17 April 2018 at 1:23pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – Genuine applicant for entry and stay as a student – No Certificate of Enrolment  – No evidence to demonstrate financial difficulty – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.212

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 28 October 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under Section 65 of the Migration Act 1958 (the Act).

2. At the hearing on 28 March 2018 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. You applied for the visa on 11 October 2016 to undertake study in Australia.

4. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained two subclasses. The delegate in your case refused to grant the visa on the basis that you did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that you were a genuine student who intends genuinely to stay in Australia temporarily.

5. You appeared before the Tribunal today to give evidence and present arguments.

6. While the issue before the delegate was whether you are a genuine temporary entrant, the issue before the Tribunal now is whether at the time of this decision you meet the enrolment requirements for a student visa.

7. The Tribunal confirmed with you that arising from your evidence today, the determinative issue before the Tribunal changed, from the genuine temporary entrant criterion to the enrolment requirement.

8. With limited exceptions, none of which is relevant to your present case, the Regulations require for both subclasses of the Student visa, that at the time of the decision, an applicant must be enrolled in a course of study that is a principal course and is of a type specified for the subclass at the time of application.

9. A written invitation to attend the hearing today was sent to you on 9 March 2018. In that invitation you were requested to provide a copy of your current Certificate of Enrolment, at least seven (7) days before the scheduled date of the hearing.  A copy of the certificate was not provided.

10. I asked you at the hearing today whether you were able to provide the Tribunal a copy of your Certificate of Enrolment. You did not do so because, as you said in evidence, you do not have one and in your sworn evidence before the Tribunal you confirmed that you are not currently enrolled in any course of study in Australia.

11. The reason you gave for not being enrolled is that you stated you are not in a financial position to fund your study. Accordingly there is no evidence before the Tribunal that you are now enrolled in any applicable course of study. Therefore the current enrolment prerequisite is not met and for these reasons I have concluded the decision under review should be affirmed.

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a student a Student (Temporary) (Class TU) visa and this decision is made at 4.44 pm on 28 March 2018.

    M. Jackson
    Member

    
    

    P. Wood
    Senior Member