Kudupudi (Migration)

[2018] AATA 3224

Kudupudi (Migration) [2018] AATA 3224 (13 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Srimannarayan Kudupudi
Mrs Padmavathi Kudupudi

CASE NUMBER:  1616941

HOME AFFAIRS REFERENCE(S):           BCC2016/2382736

MEMBER:Stephen Witts

DATE:13 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 13 August 2018 at 10:53am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – No current course enrolment – History of unrelated course enrolments – Decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 1.03 Schedule 2 cls 500.111, 500.212,

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 29 September 2016 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 17 July 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 the delegate was not satisfied that the applicant genuinely intends to stand Australia temporarily.

4. The applicants appeared before the Tribunal on 13 August 2018 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 delegate genuinely intends to stay in Australia temporarily.

   Enrolment (cl.500.211)

8. 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.

9. ‘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.

10. At the hearing¶ the Tribunal had a discussion with the applicant regarding the considerations outlined in Ministerial Direction 69.

11. Adopting the procedure of the Act 359AA, the Tribunal read out the following statement to the applicant:

12. I’d like to talk to you about your study history and to do that I’m going to put to you formally under the law, a piece of information that I have. The information that I will put to you is something I consider would be the reason, or part of the reason, for affirming the decision under review.

13. I have before me, Provider Registration and International Student Management System records, otherwise referred to as PRISMS. This PRISMS record from a database that is kept by the education providers and details all of your certificates of enrolments, the dates that you remained enrolled and the outcome of the courses.

14. This information is relevant to the review because it may lead me to form the view that it documents a history of unrelated courses. It lists many courses that weren’t started, or that were started and shortly thereafter cancelled.

15. The consequence of this information being relied on by me may be that I form the view that you do not meet the requisite criteria, more specifically that you are not a genuine student. This may mean that you are refused to visa which you have applied for.

16. You may comment on or otherwise respond to this information. You may wish to ask for additional time to comment on or respond to the information.

17. The Tribunal then had a discussion with the applicant regarding the applicant’s current enrolment status. The Tribunal noted to the applicant that being enrolled to study a course here in Australia is a mandatory criteria and that this is now the subject under discussion not the applicant’s genuine temporary entrance status.

18. The Tribunal asked the applicant to confirm that his last course of study here was an Advanced Diploma of Marketing which the applicant finished in July 2017. The applicant acknowledged that this was his last course of study and that he had not studied here in Australia since that time. The Tribunal noted to the applicant that he was not, in fact, enrolled to study a course here in Australia and this was acknowledged by the applicant.

19. 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.

20. 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

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

    Stephen Witts
    Member