Kumar (Migration)

[2020] AATA 3633

Kumar (Migration) [2020] AATA 3633 (14 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Virender Kumar

CASE NUMBER:  1825675

HOME AFFAIRS REFERENCE(S):          BCC2018/2553773

MEMBER:Steven Griffiths

DATE:14 July 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 14 July 2020 at 12:11pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–   genuine temporary entrant criterion not met–not currently enrolled in a registered course of study– no current confirmation of enrolment– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212

Education Services for Overseas Students Act 2000

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 14 August 2018 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 7 July 2018. 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. The applicant was assisted by his registered migration agent.

5. On 18 March 2020 the Tribunal wrote to the applicants pursuant to s.359(2) of the Act, inviting the applicant to provide all relevant information about the course(s) of study he is undertaking and his entry and stay in Australia as a student in writing. The invitation was sent to the applicant by his registered migration agent,  Mr. Mohammad Ahasan Ali, of Immi Visa Pty. Ltd., via email [email protected] and advised that, if the information was not provided in writing by 1 April 2020, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The Tribunal notes a response to the s.359(2) of the Act request for information was received on 1 April 2020.

7. On 25 May 2020 the Tribunal wrote to the applicant inviting them to a hearing, pursuant to s.360(1) of the Act, scheduled for 14 July 2020. 

8. The applicant appeared before the Tribunal on 14 July 2020 to give evidence, respond to questions and present arguments. The hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

9. The registered migration agent did not take part in the hearing.

10. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were raised by the parties on holding a telephone hearing and the Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.   

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. The Tribunal notes the delegate’s decision was based around compliance with cl.500.212 of the Regulations and if the applicant was a genuine applicant for entry and stay as a student.

14. The Tribunal has read and had regard to information provided by the applicant to the Department. The Tribunal has also read and had regard to the delegate’s decision record, a copy of which was provided to the Tribunal by the primary applicant with his application for review.

15. The Tribunal has read and had regard to information provided by the applicant to the Tribunal on a 1 April 2020 as a response to the s.359(2) of the Act request for information, which includes:-

    (a)Completed a Diploma of Electrical Engineering in India in June 2016.

    (b)Arrived in Australia on 8 April 2018 and has left not left.

    (c)Does not have a current Confirmation-of-Enrolment.

    (d)Was not enrolled between August 2018 and April 2020.

    (e)Has a brother living in Australia, with no other family members identified.

    (f)Submission by Migration Agent dated 31/3/20.

16. The applicant is a 26-year-old male citizen of India who arrived in Australia on 7 April 2018 on a Temporary Activity 408 Visa granted 4/4/18 and to cease 7/7/18 and has been on a WA-010 Bridging Visa from 7/7/18.

17. The Tribunal determines the issue in the case is whether the applicant satisfies the primary criteria contained in cl.500.211 of the Regulations, which states the following must be satisfied:-

    One of the following applies:

    (a)the applicant is enrolled in a course of study;

    (b)if the application is made in Australia – the applicant is seeking to remain in Australia because the relevant education institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

    (c)if the applicant is a Foreign Affairs student – the applicant has the support of the Foreign Affairs Minister for the grant of the visa;

18. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulation 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. The applicant has made no claim to meet any of the alternative criteria of cl.500.211.

19. The Tribunal notes the student visa applicant lodged by the applicant 7 July 2018 provided details of the applicant seeking to study English for Academic Purposes and an Advance Diploma of Accounting, with the study intended to take 3 years.

20. The Tribunal notes the oral evidence of the applicant that he student English for Academic Purposes for 4 months until his Student Visa application was refused, with the Tribunal noting that no documented evidence was supplied to verify this.

21. The Tribunal accepts the documented and oral evidence of the applicant that he does not have a current confirmation-of-enrolment and places weight on this.

22. The Tribunal notes the oral evidence of the applicant that with the refusal of his student visa in August 2018 he was stressed and was not being advised well, deciding to wait until the Tribunal had considered the review of the student visa application and then enrol in a course of study and places weight on this.

23. The Tribunal notes the oral evidence of the applicant that he has used the services of his migration agent since before his student visa application was lodged in July 2018 and places weight on this.

24. The Tribunal determines that the applicant has not studied since August 2018 and does not have a current confirmation-of-enrolment for a course of study in place.

25. The Tribunal has not been provided with any information by the applicant that she is currently enrolled in a course of study as required by cl.500.211. As such, the Tribunal cannot be satisfied that the criteria for a grant of a Subclass 500 (Student) visa are met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

26. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Steven Griffiths
    Member