Nair (Migration)

[2019] AATA 6532

Nair (Migration) [2019] AATA 6532 (21 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Monish Muralidharan Nair

CASE NUMBER:  1815586

DIBP REFERENCE(S):  BCC2018/1560707

MEMBER:Warren Stooke AM

DATE AND TIME OF

ORAL DECISION AND REASONS:          at 10.16 am on 21 November 2019

DATE OF WRITTEN RECORD:                21 November 2019

PLACE OF DECISION:  Melbourne

Statement made on 21 November 2019 at 1:30pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – determinative issue changed – sufficient funds to meet costs for stay in Australia – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.211, 500.214

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 the Department of Home Affairs on 26 May 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
2. The applicant applied for the visas on 6 April 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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) on the basis that the applicant did not demonstrate that he had sufficient funds available to meet the requisite costs for the total period of stay in Australia.
4. The applicant confirmed to the Tribunal that he had provided a copy of the delegate’s decision record to the Tribunal.
5. The applicant gave evidence that he understood the basis of the delegate’s decision and gave the reason as “insufficient funds”.
6. The Tribunal formally wrote to the applicant on 6 November 2019 to invite the applicant to attend a hearing scheduled for 21 November 2019. The invitation included advice that the applicant should provide to the Tribunal a copy of the current Confirmation of Enrolment (CEO) in accordance with the requirements of cl.500.211(a).
7. The applicant appeared before the Tribunal on 21 November 2019 to give evidence and present arguments.
8. While the issue before the delegate was whether the applicant had genuine access to funds to support his tuition fees; living expenses and travel, arising from the applicant's response to the Tribunal’s request for information concerning a ‘confirmation of enrolment’, the issue before the Tribunal became whether, at the time of decision, the applicant meets the enrolment requirement in cl.500.211(a) for a student visa.
9. The applicant acknowledged understanding that thedeterminative issue that was thenbefore the Tribunal had changed. The applicant was given an opportunity to address the Tribunal in relation to thisdeterminative issue and he stated that he confirmed that he does not have a ‘confirmation of enrolment’, as required by cl.500.211(a).
10. The criteria for a Subclass 500 (Student) visa are set out in Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by the applicant.
11. 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.
12. ‘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.
13. At the hearing the applicant was given the opportunity to provide enrolment evidence to the Tribunal, such as a copy of a current CoE certificate. No such evidence was forthcoming.
14. The applicant confirmed in sworn evidence that no current enrolment in an approved course of study exists. As such, there is no evidence before the Tribunal that the applicant is enrolled in any approved course of study.
15. Therefore cl.500.211 is not met by the applicant.
16. 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. For these reasons, the Tribunal has concluded that the decision under review should be affirmed
17. DECISION
18. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Warren Stooke AM

Member