Patel (Migration)

[2019] AATA 5375

Patel (Migration) [2019] AATA 5375 (6 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Pinal Sanket Patel
Mr Sanket Kanubhai Patel
Master Prihaan Sanket Patel

CASE NUMBER:  1807735

HOME AFFAIRS REFERENCE(S):         BCC2018/805124

MEMBER:Peter Haag

DATE:6 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 06 September 2019 at 3:19pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – no response to s 359(2) invitation – not entitled to appear before the Tribunal – genuine temporary entrant – enrolment status – evidence of enrolment in a course of study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

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 Home Affairs on 20 March 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 19 February 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 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 the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. The applicants were assisted in relation to the review by their registered migration agent.

5. On 14 May 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information in writing about the Student Visa. Amongst other things the invitation informed the applicant that as she had applied for the Student Visa on the basis of undertaking a course of study in Australia it is a requirement of the visa that she (the main applicant) be enrolled in a registered course of study and a genuine applicant for entry and stay as a student. Accordingly the applicant was invited to give in writing information about the courses of study she as the main applicant is undertaking and her entry and stay in Australia as a student. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by 28 May 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. In her response, the applicant indicated consent to the Tribunal deciding the review without hearing. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. In responding to the s.359(2) invitation the applicant, assisted by her migration agent, addressed the question of the applicant’s current enrolment status and provided evidence to the Tribunal on 29 May 2019 of the applicant’s enrolment status. Additionally, by the consent to the Tribunal deciding the review without hearing, the applicant consented to the Tribunal determining the review on the evidence available to it at the time of decision. This matter has therefore been determined on the evidence available to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 in a course of study at the time of this decision.

9. 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.

10. ‘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.

11. The Tribunal has considered the contents of the Department file and the Tribunal file. The Department file does not contain evidence which demonstrates the applicant is currently enrolled in a course of study. The Tribunal file contains evidence that the course of study the applicant was enrolled in most recently is the Diploma of Leadership and Management starting 4 June 2018 and ending 2 June 2019. This evidence is consistent with the applicant’s Statement of Purpose[1] which indicated the applicant wanted to complete a course of training in leadership and management in order to achieve her long-term career goal of gaining employment as an account manager. There is however no evidence in the Tribunal file that proves the applicant is currently enrolled in a course of study. Considering the Department file and the Tribunal file together there is no evidence before the Tribunal which proves the applicant is currently enrolled in a course of study. 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.

    [1] Department file, folio 61

12. 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.

13. As the main applicant Pinal Sanket Patel was found not to meet cl.500.212, dependent applicant Prihaan Sanket Patel does not satisfy the requirements of cl.500.311: consequently, as the dependent applicant has been found not to satisfy cl.500.311, no further assessment with regard to this application is necessary and the application is dismissed.

14. As the main applicant Pinal Sanket Patel was found not to meet cl.500.212, dependent applicant Sanket Kanubhai Patel does not satisfy the requirements of cl.500.311: consequently, as the dependent applicant has been found not to satisfy cl.500.311, no further assessment with regard to this application is necessary and the application is dismissed.

    DECISION

15. The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

    Peter Haag
    Member