Matharu (Migration)

[2019] AATA 1577

Matharu (Migration) [2019] AATA 1577 (13 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jaspreet Kaur Matharu

CASE NUMBER:  1719672

DIBP REFERENCE(S):  BCC2017/2087487

MEMBER:Elizabeth Tueno

DATE AND TIME OF

ORAL DECISION AND REASONS:          13 March 2019 at 3:03 pm (VIC time)

DATE OF WRITTEN RECORD:                14 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 14 May 2019 at 3:53pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – letter of offer – no Confirmation of Enrolment – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 August 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 13 May 2019 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. This is an oral decision in case number 1719672; the applicant being Jaspreet Kaur Matharu. This is an application for a review of a decision made by a delegate of the Minister for Immigration on 10 August 2017 to refuse to grant you a Student (Temporary) Class TU visa under section 65 of the Migration Act 1958.

4. The applicant applied for the visa on 13 June 2017 to undertake study in Australia. At the time the visa application was lodged, the Student (Temporary) Class TU visa contained two subclasses, subclass 500 for a student visa and subclass 590 for a student guardian. The applicant confirmed at hearing that she applied for a student visa and does not claim to meet the criteria for a subclass 590 student guardian visa.

5. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500 2.2 of Schedule 2 to the Migration Regulations 1994, because the delegate was not satisfied that she was a genuine student who intends, genuinely, to stay in Australia temporarily. The applicant appeared before the tribunal, today, to give evidence and present arguments.

6. The applicant was represented, in relation to the review, by her registered migration agent.  While the issue before the delegate was whether the applicant is a genuine temporary entrant, the issue before the tribunal now is whether, at the time of the decision, she meets the enrolment requirements for a student visa.

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 clause 500.211 to clause 500.218 must be satisfied by the applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. This is not an issue in the present case. The issue in the present case is whether the applicant is enrolled in a course of study as required for the grant of a student visa.  Clause 500.211 relevantly requires that, at the time of this decision, the applicant is enrolled in a course of study that is pursuant to subparagraph (a). The applicant does not claim to meet any of the alternative criteria in that clause. 

8. Course of study is relevantly defined in clause 500.111 of the regulations as a full-time registered course. Registered course is defined in the regulations as a course of education or training provided by an institution, body or person that is registered under the Education Services for Overseas Students Act 2000, to provide the course to overseas students. On 26 February 2019, a written invitation to attend today’s hearing was sent to the applicant via her migration agent. In that invitation, she was requested to provide evidence of enrolment in a full-time registered course to the tribunal at least seven days before today’s hearing. Such evidence has not been provided.

9. At the hearing today, the applicant was again requested to provide evidence of current enrolment to the tribunal, such as a copy of a current confirmation of enrolment. The applicant has not done so. What the applicant has provided is a letter from Stott’s College, which is dated 29 January 2019, a student letter of offer in relation to the course of a Bachelor of Business. This course is due to commence on 18 March 2019 and ends on 31 December 2020. Other than this letter of offer, there is no evidence before the tribunal in relation to confirmation of enrolment.

10. In her sworn evidence before the tribunal, the applicant confirmed that she was last enrolled in a Bachelor of Applied Social Science and that was in 2017. Accordingly, there is no evidence before me that the applicant is enrolled in any course of study.  The applicant was also shown PRISMS records that do not show a current enrolment in the Bachelor of Business course at Stott’s College. What the PRISMS records do indicate is that on 15 August 2017 the applicant’s enrolment in the Bachelor of Applied Social Science was cancelled. That is the most recent course of study that the applicant has.

11. Accordingly, there is no evidence before me that the applicant is enrolled in any course of study. Therefore, the tribunal is not satisfied that, at the time of this decision, the applicant is enrolled in a course of study and accordingly, clause 500.211 is not met. I should point out that in her sworn evidence before the tribunal, the applicant stated that she did not complete the Applied Social Science degree because she did not get a visa. The delegate had refused her application for a visa in 2017. She has not paid a deposit on the Bachelor of Business course as she was waiting the outcome of today’s hearing. She said that her offer has been accepted, but she was unable to provide the confirmation of enrolment.

12. Her representative, Mr Brau, on her behalf, said that the college provided a letter of offer, but was not going to provide a confirmation of enrolment as she had not paid anything. She would be required to pay over $4000 for the confirmation of enrolment. As I have already indicated, I do not believe that there is evidence before me that shows that the applicant is enrolled in any course of study, therefore, the tribunal is not satisfied that, at the time of this decision, that the applicant is enrolled in a course of study and accordingly, clause 500.211 is not met.

13. Given the above findings, the tribunal finds that the criteria for the grant of subclass 500 student visa are not met. As confirmed at the hearing, the applicant does not plan to meet the criteria for a subclass 590 student guardian visa.  For these reasons, the tribunal finds that the decision under review should be affirmed. The tribunal affirms the decision not to grant the applicant a Student (Temporary) Class TU visa. 

14. This decision is made at 3.03 pm on 13 March 2019.

    DECISION

15. The Tribunal affirms the decision under review.

    Elizabeth Tueno
    Member