MEHTA (Migration)

[2019] AATA 3939

MEHTA (Migration) [2019] AATA 3939 (21 August 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr GAURAV MEHTA

CASE NUMBER:  1720895

HOME AFFAIRS REFERENCE(S):           BCC2017/1027920

MEMBER:  Penelope Hunter

DATE OF ORAL DECISION:  21 August 2019

DATE OF WRITTEN STATEMENT:         21 August 2019

PLACE OF DECISION:  Sydney

DECISION:  The Tribunal affirms the decision not to grant the

applicant a Student (Temporary) (Class TU) visa.

Statement made on 21 August 2019 at 4:59pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment status – not enrolled in a course of study at time of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 18 August 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 15 March 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.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was enrolled in a course of study.

4. The applicant appeared before the Tribunal on 21 August 2019 to give evidence and present arguments.

5. The applicant was assisted in relation to the review by their registered migration agent, although his agent was not present at the hearing.

6. The Tribunal gave its decision on the review at the conclusion of the hearing held on 21 August 2019, and concluded that the decision under review should be affirmed. The following are the reasons for that decision.

   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 applicant satisfies 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. The applicant applied for the visa in order to undertake study in Bachelor of Business Management with course dates from 8 May 2017 to 6 March 2020. The applicant set out in his application form for the visa that he did not hold a Confirmation of Enrolment (CoE) for his intended course of study. He provided to the Department a letter of offer in the course issued 15 March 2017.

11. The delegate in their decision refusing the visa, a copy of which the applicant has submitted to the Tribunal, set out that on 7 June 2017, the applicant was requested to provide

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evidence that he held enrolment in an acceptable course of study within 28 days. The delegate further records that at the time of their decision, 18 August 2017, the applicant had not provided evidence of enrolment in an acceptable course of study. Further, a check of the applicant’s Provider Registration and International Student Management System (PRISMS) record did not indicate that the applicant held enrolment in an acceptable course of study.

1. At the hearing the applicant presented to the Tribunal the following documents;

   ·CoE in a Certificate IV in Human Resources at Gateway Business College from 17 August 2015 to 7 August 2016.

   ·CoE in a Diploma of Human Resources at Gateway Business College from 8 August 2016 to 6 August 2017.

   ·Initial psychological assessment report dated 20 February 2015.

2. The Tribunal confirmed with the applicant that he understood the reason for the visa refusal, and he acknowledged that it was in relation to his enrolment.

3. The Tribunal discussed with the applicant that he had not provided to the Department a current CoE when he applied for the visa under review. The applicant replied that he did not provide one because he was waiting for the Department to first approve the visa application. The Tribunal notes that the delegate has set out that evidence of the applicant’s enrolment was requested prior to the decision to refuse the visa. It was pointed out to the applicant at the hearing that it was a time of decision requirement for the grant of the visa that he be enrolled in a course of study.

4. The Tribunal drew to the attention of the applicant that he had applied for the visa in March 2017, the CoE that he had submitted to the Tribunal at the hearing recorded that his course ceased on 6 August 2017, the applicant was asked whether this was the last enrolment he held. He confirmed that this was the case. The Tribunal discussed with the applicant that the Tribunal’s letter of 24 July 2019, inviting him to attend the hearing requested that he provide a copy of his current CoE at least 7 days prior to the hearing. This was a criteria he had failed to meet in August 2017. The applicant acknowledged this request

5. Pursuant to the provisions of s.359AA of the Act the Tribunal put to the applicant information contained in his PRISMS records that recorded his enrolment in his last course, a further Diploma of Human Resources Management had been cancelled on 16 June 2016. The applicant was provided with a copy of the record at the hearing. He was further told that the information was relevant to the review application because on the records it appeared that the applicant had not been studying for over three years. The applicant was further informed that his lack of enrolment would be a reason or a part of a reason for affirming the decision under review as enrolment in a course of study was requirement for the grant of the visa. The applicant was invited to request additional time to respond, but chose to respond immediately and said that his previous provider had cancelled his Diploma of Human Resources without writing to him. The Tribunal did not consider that this response addressed the issue of concern, being current enrolment in a course of study. It was pointed out to the applicant that his previous provider had cancelled the course he was referring to prior to the current visa application under review. The applicant responded further and acknowledged that he had been told by his agent that the CoE was cancelled and the agent had told that when he applied for the visa under review he should get a new CoE. The Tribunal then asked the applicant if he could recall the course that he was proposing to study, and he responded that it was the same, a Diploma of Human Resources. The Tribunal then drew to the attention of the applicant that he had actually applied for a visa to undertake study in a Bachelor of Business.

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1. The applicant said he was waiting for a decision in relation to the grant of the student visa and for this reason he had not obtained enrolment. The applicant said that he needed a chance because his parents had spent a lot of money, he suggested that he may be able to obtain enrolment in the future if given a chance by the Tribunal. The Tribunal asked the applicant whether he had made any enquiries or taken any steps to enrol in a course. The applicant replied that he had not.

2. The Tribunal considered the applicant’s request for further time to obtain enrolment but did not consider that it was appropriate to adjourn the matter further. The Tribunal weighed the circumstances of the applicant’s case with the objectives of the Tribunal under section 2A of the Administrative Appeals Tribunal Act 1975, particularly the requirement for review that is economical, informal and quick, and proportionate to the complexity of the matter. These circumstances were that the application under review was for a temporary visa. On the information before the Tribunal, the applicant had not been enrolled in a course of study since July 2016. This was a period of over three years. He had also been on notice of the reason for the visa refusal since the delegate’s decision of 18 August 2017, over two years. The applicant told the Tribunal he understood those reasons. He was also on notice when he was sent the invitation to the Tribunal hearing on 24 July 2019, that he was requested to provide a copy of his current enrolment at least 7 days prior to the Tribunal hearing. The applicant on his evidence had not taken any steps to obtain enrolment. It was considered that the applicant had had the benefit of significant time to satisfy the visa criteria under review, he had the assistance of a migration agent in lodging the application under review, and he was not able to demonstrate that he had taken any steps to obtain enrolment. It was further noted that the applicant could not even accurately remember the course that he claimed he wished to undertake when he applied for the visa. The Tribunal also had regard to the psychological assessment report submitted, however it refers to circumstances at least 4 years prior to the Tribunal hearing, and provides a recommendation that the applicant relocate to Sydney to resume his studies at that time. It does not establish that the applicant was unable to study due to medical reasons and the applicant has not made any submissions regarding ongoing medical issues in respect of the current visa application.

3. 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.

4. 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

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

   Penelope Hunter
   Member

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