Marahar (Migration)

[2019] AATA 2113

Marahar (Migration) [2019] AATA 2113 (29 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gursharan Singh Marahar

CASE NUMBER:  1728614

HOME AFFAIRS REFERENCE(S):           BCC2017/3114823

MEMBER:Donna Petrovich

DATE OF ORAL DECISION:  29 April 2019

DATE OF WRITTEN STATEMENT:         8 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 08 May 2019 at 2:29pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant criterion – not enrolled in an approved course at the time of decision – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, Schedule 2, cls 500.111, 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 Immigration and Border Protection on 31 October 2017 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 29 August 2017. 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.

   STATEMENT OF DECISION AND REASONS

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) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. The Tribunal gave its decision on the review at the conclusion of the hearing held on 29 May 2019. The following are the reasons for that decision.

5. The applicant appeared before the Tribunal on 29 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. You, the applicant appeared before the Tribunal this day to give evidence and present arguments. Adopting the procedure in section 359AA of the Migration Act, the Tribunal put to you your enrolment records. The Tribunal explained to you the relevance of your enrolment records to the review. The Tribunal explained to you the consequences of the Tribunal relying upon this information. You confirmed that you understood the relevance of the information to the review and the consequences of the Tribunal relying upon this information.

7. The Tribunal advised you that you could seek additional time before commenting on or responding to the information. You did not elect to seek additional time and rather you elected to comment during the course of the hearing. You said that you were not enrolled and wanted to wait until you had determined whether or not you would obtain a Visa as this would save the amount of the enrolment.   

8. Arising from this evidence the Tribunal advised you that you that the determinative issue before the Tribunal had changed. That is, the Tribunal informed you that the determinative issue had changed from genuine temporary entrant criterial to the enrolment criteria.

9. You confirmed to the Tribunal that you understood that the determinative issue had changed and you were given an opportunity to address the Tribunal in relation to the enrolment criteria. You once again restated that you had chosen not to re-enrol and were waiting until the determination of the Tribunal. 

10. Clause 500.211 relevantly requires that at the time of this decision the main applicant is enrolled in a course of study.  See clause 500.211(a). You did not claim to meet any of the alternative criteria in clause 500.211. Course of study is relevantly defined in clause 500.111 of the Regulations as a full-time registered course.

11. The Tribunal reiterated to you, that the issue before the Tribunal, that is the determinative issue now, is whether you as the main applicant met the enrolment requirement. 

12. On 8 April 2019, the Tribunal sent a written invitation to attend today’s hearing was sent to you at your nominated contact point. In that written invitation you were requested to provide evidence of your enrolment in a full-time registered course to the Tribunal at least seven days before today’s hearing. Such evidence has not been provided. The Tribunal does not accept your explanation of not undertaking enrolment until after the outcome of the hearing. 

13. At the hearing you once again had the opportunity to provide this evidence to the Tribunal. You, of course, did not and, as I have already said, you confirmed that were not enrolled.

14. Accordingly, there is no evidence before me that you are enrolled in any course of study.  Therefore, the Tribunal is not satisfied that at the time of this decision that you are enrolled in  a course of study as required by clause 500.211 and therefore finds that clause 500.211 is not met.

15. Given the findings above the Tribunal finds that the criteria for the grant of a subclass 500 (student) visa are not met. For these reasons the Tribunal has concluded that the decision under review be affirmed. The Tribunal makes the following decision. The Tribunal affirms the decision under review.

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

    DECISION

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

    Donna Petrovich
    Member