Nepal (Migration)

[2020] AATA 5964

Nepal (Migration) [2020] AATA 5964 (28 September 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Vivek Nepal

CASE NUMBER:  1927838

DIBP REFERENCE(S):  BCC2019/3577677

MEMBER:  Dominic Triaca

DATE AND TIME OF

ORAL DECISION AND REASONS:          28 September 2020 at 3:40 pm (VIC time)

DATE OF WRITTEN RECORD:                16 October 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 16 October 2020 at 3:44pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) Subclass 500 visa – no evidence of confirmation of enrolment – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 18 September 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

1. At the hearing on 28 September 2020, 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

1. The criteria for the subclass 500 visa is set out in part 500 of the regulations. The primary criteria is in clauses 500.211 to 500.218. They must be satisfied by at least one applicant. Enrolment is relevantly set out in clause 500.211. It relevantly requires that at the time of the decision, the applicant be enrolled in a course of study. Course of study is relevantly defined in the regulations as a full-time registered course, and a 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. Producing evidence of a current enrolment is a critical first step toward obtaining a student visa. Such evidence shows that the applicant has, prior to coming to the tribunal, entered into a legally binding contract with a registered course provider, and enrolment continues to be of legal significance once the student visa is issued.

1. All student visas are subject to a condition that the visa holder remain enrolled in a registered course of study. That condition operates on a continuing basis every day the visa remains valid. If a student visa is issued to an applicant who is not enrolled in a course of study, the visa will be breached as soon as it is granted. The tribunal must therefore be presented with evidence that shows the applicant is currently enrolled in a registered course of study. Absent such evidence, a student visa cannot sensibly be granted. Indeed, in any case for a student visa, consideration of whether all primary criteria are met as contained in clause 500.212 to 500.218 is premised on the enrolment criteria in clause 500.211 first being satisfied.

1. If clause 500.211 is not met, there is no administrative utility in proceeding to consider the further primary criteria. In this case, the tribunal was not satisfied the applicant is currently enrolled in a registered course of study. The tribunal wrote to the applicant pursuant to section 359 of the Migration Act on 15 May 2020. In that correspondence the tribunal noted as you have applied for a visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be enrolled in a registered course of study and a genuine applicant for entry. As a student, accordingly, you need to provide information to satisfy us that you meet both these requirements.

1. The applicant responded to the tribunal on 26 June and in the written document filed by the applicant to the tribunal’s question, “Does the main applicant have a current confirmation of enrolment?”, the applicant responded, ‘No’. The applicant confirmed in his evidence today that he was not enrolled in any course of study and did not have a current enrolment. The tribunal advised him of the significance of having a current enrolment, and his evidence was that he had no study rights after the second refusal of his visa application and he was unable to be enrolled.

1. What the evidence demonstrates is that the applicant arrived in Australia in June of 2018 as a dependent on his wife’s student visa. The couple subsequently separated.  He applied for a student visa on 30 April 2019 proposing to study cooking courses. This application was refused on 2 July 2019. He then made a further application for a student visa on 18 July of

2019, and at that time he was proposing to study automotive courses. This application was refused on 18 September 2019, and after that time he was unable to study further. His evidence was that he had done some study in a Certificate III in light vehicle mechanical technology, the last of which he said was in or about September or October of 2019, and he has not studied or been enrolled in Australia since that time.

1. For the purposes of determining whether the criteria is satisfied, the enrolment criteria is satisfied, cogent evidence and a current enrolment must be presented to the tribunal before it can make a finding that the applicant is enrolled in a registered course of study. There is presently no such evidence before the tribunal. Therefore, the tribunal is not satisfied that at the time of the decision, the applicant is enrolled in a registered course of study.  Accordingly, clause 500.211 is not met.

1. Given these findings, the tribunal finds that the criteria for a student visa subclass 500 is not met. The applicant does not claim to meet the criteria for a subclass 590 visa, and accordingly the decision under review must be affirmed. I affirm the decision not to grant the applicant a student visa.

DECISION

1. The Tribunal affirms the decision under review.

D Triaca Member