Rani (Migration)

[2020] AATA 2810

Rani (Migration) [2020] AATA 2810 (23 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Neelam Rani
Mr Hardeep Singh
Ms Parmeet Kaur

CASE NUMBER:  1827197

DIBP REFERENCE(S):  BCC2018/2995190

MEMBER:Amanda Pearson

DATE AND TIME OF

ORAL DECISION AND REASONS:         23 April 2020 at 1:53 pm (VIC time)

DATE OF WRITTEN RECORD:                28 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 28 May 2020 at 3:12pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–    genuine temporary entrant criterion not met– applicant is not currently studying –no current confirmation of enrolment– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 500.211

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 14 September 2018 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 22 April 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

3. The applicant applied for the visa on 9 August 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of schedule 2 to the Migration Regulations 1994 because the delegate was not satisfied that the applicant is a genuine student who intends genuinely to stay in Australia temporarily.

4. The applicant has appeared before the tribunal today 22 April 2020 to give evidence and present arguments.  While the issue before the delegate was whether the applicant is a genuine temporary entrant, arising from the applicant’s evidence the issue before the tribunal became whether at the time of the decision the applicant meets the enrolment requirement in clause 500.211(a) for a student visa.

5. The applicant acknowledged understanding that the determinative issue before the tribunal had changed. The applicant was given an opportunity to address the tribunal in relation to the determinative issue. In strict accordance with the procedures set out in section 359AA of the Migration Act the tribunal put to the applicant enrolment records from the Provider Registration International Student Management System database. These records confirm that the applicant was not enrolled in an approved course of study at the time of the tribunal hearing and the applicant confirmed this.

6. The criteria for subclass 500 student visa are set out in part 500 of schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study. The applicant does not claim to meet any of the alternative criteria in clause 500.211. Course of study is relevantly defined as a fulltime registered course.

7. On 7 April 2020 a written invitation to appear before the tribunal was sent to the applicant.  In that invitation the applicant was requested to provide evidence of enrolment in a fulltime registered course to the tribunal at least seven days before the hearing.  Such evidence has not been provided.

8. At the hearing the applicant was again given the opportunity to raise any issues in regards to her enrolment.  No such evidence has been forthcoming and the applicant has confirmed she is currently not enrolled in an approved course of study.  As such there is no evidence before the tribunal that the applicant is enrolled in any approved course of study, therefore clause 500.211 is not met.

9. Given the evidence before the tribunal today the tribunal has concluded that the decision under review should be affirmed.  The oral decision by myself is now concluded and I have affirmed the decision under review not to grant the applicant a student visa.

   DECISION

10. The Tribunal affirms the decisions under review.

    Amanda Pearson
    Member