Patel (Migration)

[2019] AATA 2905

Patel (Migration) [2019] AATA 2905 (6 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Truptiben Tejendrakumar Patel
Mr Tejendrakumar Kishorbhai Patel
Ms Kirtana Tejendrakumar Patel
Ms Prutha Tejendrakumar Patel

CASE NUMBER:  1705370

HOME AFFAIRS REFERENCE(S):           BCC2017/454069

MEMBER:D Creedon

DATE:6 April 2019

PLACE OF DECISION:  Perth

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

Statement made on 06 April 2019 at 3:38pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant – not enrolled in an approved course at the time of decision – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), ss 65, 359, 360
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 500.111, 500.211, 500.212, 500.311

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 17 March 2017 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 3 February 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant, the first named 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) on the basis that she was not a genuine applicant for entry and stay as a student. 

4. The applicant provided a copy of the delegate’s decision record to the Tribunal.

5. The Tribunal formally wrote to the applicant on 11 January 2019 pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal.

6. The applicant responded to the Tribunal’s request by written instrument lodged with the Tribunal on 21 January 2019.  By that instrument the applicant informed the Tribunal, materially, that:

   a.the applicants consent to the Tribunal deciding the review without a hearing; and

   b.the applicant does not hold a current confirmation of enrolment (CoE) in a registered course of study in Australia;

7. The Tribunal is satisfied that the necessary consent referred to above (at paragraph [6(a)]) has been given under section 360(2)(b) of the Act and that, pursuant to section 360(3), the applicants are no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal..

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.

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. From the information provided to the Tribunal by the applicant the Tribunal finds that the applicant is not currently enrolled in a course of study.  Therefore cl.500.211 is not met by the applicant.

12. The Tribunal has considered the circumstances of the secondary applicants, being the second-named applicant, the third-named applicant and the fourth-named applicant.

13. The Tribunal considers that the secondary applicants do not satisfy cl.500.311(a) of the Regulations as the primary applicant does not meet cl.500.211.

14. The secondary applicants do not meet the primary criteria for a Subclass 500 visa as there is no evidence to show they, or any of them, are enrolled in a ‘course of study’, or are a Foreign Affairs or Defence student.  At the time of the delegate's decision the secondary applicants did not meet this criterion, as per the delegate's decision.

15. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicants do 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

DECISION

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

Damian Creedon
Member