Munnamgi (Migration)

[2019] AATA 535

Munnamgi (Migration) [2019] AATA 535 (18 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sri Harsha Munnamgi

CASE NUMBER:  1725456

HOME AFFAIRS REFERENCE(S):           BCC2017/2909789

MEMBER:Stephen Witts

DATE:18 February 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 18 February 2019 at 11:17am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment status – applicant 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 10 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 14 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.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant had genuine access to funds.

4. The applicant appeared before the Tribunal on 18 February 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 has genuine access to funds.

   Enrolment (cl.500.211)

7. 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.

8. ‘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.

9. At the hearing the Tribunal had a discussion with the applicant regarding the applicant’s enrolment status. Adopting the procedure under the Act 359AA the Tribunal reviewed the applicant’s study history with him pay particular regard to the applicant’s PRISMS record. The Tribunal asked the applicant if he wished for some additional time to consider this record prior to having a discussion with the Tribunal.

10. The applicant indicated that he was able to have a discussion with the Tribunal regarding his academic record. The Tribunal noted to the applicant that the issue under consideration was now the applicant’s current enrolment status not his access to funds status. The Tribunal explained to the applicant that to be enrolled in a course of study was a mandatory criterion for the granting of a student visa and that this was now the issue under discussion. The applicant indicated that he understood this.

11. The Tribunal noted to the applicant that he study record indicated that he was not currently enrolled and asked the applicant to state whether he was currently enrolled. The applicant stated that he was not currently enrolled to study a course here in Australia.

12. 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.

13. 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

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

    Stephen Witts
    Member