Raj (Migration)

[2018] AATA 4338

Raj (Migration) [2018] AATA 4338 (19 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lekh Raj

CASE NUMBER:  1619283

HOME AFFAIRS REFERENCE(S):           BCC2016/2975845

MEMBER:Meredith Jackson

DATE:19 September 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 19 September 2018 at 12:23pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 – Genuine temporary entrant – No evidence of enrolment in registered course – Decision under review affirmed

LEGISLATION

Education Services for Overseas Students Act 2000

Migration Act 1958, ss 65, 359AA

Migration Regulations 1994, Schedule 2, cl 500.212, r 1.03

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 9 November 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 7 September 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 visa 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 applicant was not satisfied the applicant intends genuinely to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 19 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 for the delegate was whether the applicant met cl.500.212 (genuine temporary entrant criteria), while the issue for the Tribunal on review is whether the applicant is currently enrolled in a specified course and meets the enrolment criteria.

7. 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.

8. ‘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.

9. At the hearing, the Tribunal, under section 359AA of the Act, referred the student to information about him held in the Provider Registration and Information Management System (PRISMS) and explained its relevance in that the information in the database might be the reason, or part of the reason to affirm the delegate’s decision. The Tribunal explained the information in the database, which captures a chronological record of the applicant’s academic history in Australia: his enrolments, commencements, cancellations and finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal referred to the information during the hearing and the applicant was invited to comment on it. The Tribunal asked the applicant if he wished to seek further time to consider it. The applicant said he was prepared to comment on the information immediately after it was read to him and said he understood it and why it was relevant to his case.

10. The Tribunal put to the applicant entries held in his PRISMS record that showed he was not currently enrolled.

11. The applicant said he had been unable to enrol due to his visa restriction.

12. The Tribunal stated that the enrolment criteria for the subclass 500 visa are separate from the genuine temporary entrant criteria. The Tribunal said that while the delegate refused the visa based on his GTE status, the Tribunal can affirm the decision based on any applicable visa criterion, including enrolment. The Tribunal said that as indicated in the hearing invitation, the Tribunal was actively considering the enrolment criterion on appeal. The applicant was asked in his invitation to the hearing to provide a copy of his current Certificate of Enrolment and/or documents that show he was currently enrolled in a registered course.  On his evidence today, the Tribunal said, he did not appear to have enrolment in any course of study. Therefore he did not appear to meet cl.500.211 and the Tribunal could affirm the decision on this basis, without considering the GTE criterion or the factors in Direction 69. The Tribunal asked the applicant if he understood that he did not seem to have any relevant enrolment and if he understood the Tribunal can affirm the decision not to grant the visa on this basis without considering the GTE criterion. The applicant said he understood.

13. The Tribunal asked whether the applicant was able to provide the Tribunal a copy of his Certificate of Enrolment or any other evidence of enrolment or have any comments to make on the Tribunal’s statement regarding the enrolment criteria. The applicant stated that did not have a COE or other evidence of enrolment, and confirmed that he is not currently enrolled in any course of study in Australia and stated that his Bridging visa conditions prevented him from becoming enrolled.

14. The Tribunal understands the visa condition prevents the applicant from enrolling.

15. The Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study. Accordingly, cl.500.211 is not met.

16. 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

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

    Meredith Jackson
    Member