Patel (Migration)

[2018] AATA 5772

Patel (Migration) [2018] AATA 5772 (4 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rinku Ashokbhai Patel

CASE NUMBER:  1717199

DIBP REFERENCE(S):  BCC2017/1360875

MEMBER:Mark Bishop

DATE AND TIME OF

ORAL DECISION AND REASONS:          4 December 2018 at 10:02 am (VIC time)

DATE OF WRITTEN RECORD:                12 December 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 – Confirmation of Enrolment not provided – applicant given numerous opportunities to submit evidence – meaning of determinative – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 July 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 4 December 2018 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

   ORAL DECISION OF MEMBER BISHOP   [9.56 am]

3. MEMBER: It is 9.56 am and this is an oral decision in application number 1717199, the Applicant being a Mrs Patel. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 July 2017, to refuse to grant you a student temporary class CU visa under section 65 of the Migration Act 1958. You applied for the visa on 12 April 2017 to undertake study in Australia. At the time the visa application was lodged, student temporary class TU visa contained two subclasses.

4. The delegate in your case refused to grant the visa on the basis that you did not satisfy the requirements of clause 500.212 of Migration Regulations 1994, because the delegate was not satisfied that you were a genuine student who intended genuinely to stay in Australia temporarily.

5. You appeared before the Tribunal today to give evidence and present arguments.  While the issue before the delegate was whether you are a genuine temporary entrant, the issue before the Tribunal now is whether at the time of this decision you meet the enrolment requirements for a student visa. 

6. The Tribunal explained that this was a determinative issue.  The Tribunal explained the meaning of the word “determinative”.  In evidence to the Tribunal, the Applicant advised that she understood the determinative issue had changed from GTE that came from duty to enrolment in a course of study.  By determinative, the Applicant agreed she understood this to mean decisive or definitive or settled. 

7. In evidence, the Applicant advised she understood the meaning of determinative and the explanation provided by the Tribunal.  The criteria for a subclass 500 student visa set out in Part 500 of Schedule 2 to the Regulations (indistinct) criteria in clause 500.211 to 218 must be satisfied by the Applicant.  The issue in the present case is whether the Applicant is enrolled in a course of study as required for the grant of a student visa. 

8. Adopting the procedure in section 359AA of the Act, the Tribunal provided adverse information to the Applicant.  The Tribunal explained the adverse information was derived from the PRISM record of the Applicant.  The Tribunal explained the meaning of PRISM.  The Tribunal outlined particulars of the information, explained its relevance, advised that the information would be a reason or part of a reason for the presiding member to affirm the decision of the Department in her case, and refuse the application for a visa.

9. The adverse information was as follows. 

   ·The Applicant in March finished a Diploma of Leadership and Management on 22 March 2018.  She provided a graduation certificate that showed a course completion date of 8 July 2018, issued 13 July 2018. 

   ·The Applicant’s enrolment in an advanced Diploma of Leadership and Management (COE8 COE317) was cancelled by the education provider on 20 April 2017, for reason of non-commencement of studies. 

   ·The Applicant completed an Advanced Diploma of Business COE770309 on 12 February 2017.

   ·The Applicant is not currently enrolled in a course of study. 

   ·The Applicant does not have a current COE named course of study. 

10. The Tribunal inquired if the Applicant sought additional time to consider the adverse information.  The Applicant advised she did not seek extra time.  In response, the Applicant advised all of the points that are outlined in paragraph 9 above, were correct. 

11. On 8 November 2018 the Applicant provided a written response to a section 359(2) request for information.  In that written response the Applicant advised she did not have a COE in an approved course. 

12. On 15 November 2018 a written invitation to attend the hearing today was sent via your migration agent.  In that invitation you were requested to provide evidence of enrolment in an approved course of studies to the Tribunal at least seven days before the scheduled date of the hearing.  Such evidence has not been provided.

13. At the hearing today you were again requested to provide this evidence to the Tribunal, such as a copy of your current confirmation of enrolment.  You have not done so.

14. In your sworn evidence before the Tribunal you confirmed that you were last enrolled in a Diploma of Leadership and Management, and that course was completed in July 2018.  You further confirmed in your sworn evidence that you are not currently enrolled, nor do you have a valid offer of enrolment in any course of study in Australia. 

15. Accordingly, there is no evidence before me that you are now enrolled in or have a current offer of enrolment in any course of study; therefore, the Tribunal is not satisfied that at the time of this decision that you are enrolled in a course of study, and accordingly clause 500.211 is not met. 

16. Given the above findings, the Tribunal finds 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 visa.

17. For these reasons I have concluded that the decision under review should be affirmed. 

18. The Tribunal affirms the decision not to grant the Applicant a student temporary class visa.  This decision is made at 10.02 am on 4 December 2018.

    END OF ORAL DECISION   [10.02 am]

    DECISION

19. The Tribunal affirms the decision under review.

    Mark Bishop
    Member