NEHRUPANDIYAN (Migration)

[2017] AATA 3151

NEHRUPANDIYAN (Migration) [2017] AATA 3151 (6 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bharathi NEHRUPANDIYAN

CASE NUMBER:  1616318

DIBP REFERENCE(S):  BCC2016/2307571

MEMBER:Wendy Banfield

DATE:6 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 06 December 2017 at 10:21pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant is enrolled to study – Applicant not currently enrolled – Decision affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth),
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, 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 on 14 September 2016 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 9 July 2016. 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 visas 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 it was determined the applicant was not a genuine applicant for entry and stay as a student. These findings were based on the applicant’s circumstances in Australia, immigration history and lack of an adequate explanation regarding the value of the proposed course of study to his future.

   Background

4. The primary applicant is a citizen of India and is currently aged 26. The applicant came to Australia on 10 April 2016 as the holder of a Subclass 600 Visitor Visa that was valid for 3 months. The applicant had been granted the visa for the purpose of participating in a Fine Food Queensland Festival. He had declared an intention to be in Australia for a period of 8 days. Prior to the applicant’s visa expiring, on 9 July 2016 an application for a student visa was submitted. The applicant advised the Department that he intended to study Spoken and Written English.

5. At the hearing, the applicant submitted an out of date enrolment offer from Australian International Language College for Certificates III and IV in Spoken and Written English. The enrolment offer was in relation to courses from 18 July 2016 to 5 February 2017 and from 06 February 2017 to 27 August 2017. There is no evidence before the Tribunal to show that the applicant commenced or finished either of these courses.

6. The applicant appeared before the Tribunal on 20 November 2017 to give evidence and present arguments.

7. The applicant was assisted in relation to the review by their registered migration agent. The migration agent did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 is enrolled to study as is required for the grant of a student visa.

10. 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.

11. ‘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.

12. The Tribunal has not received any evidence to demonstrate that the applicant has completed any courses of study since his arrival in Australia.  In the invitation to attend a hearing dated 27 October 2017, the applicant was asked to provide a copy of a current Certificate of Enrolment (COE) as required for the grant of a student visa. During the hearing the applicant was asked whether he was currently enrolled in a course of study and the applicant said he was consulting about it. However, no COE has been provided. 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.

    Wendy Banfield
    Member