SHRIMALI (Migration)

[2020] AATA 2798

SHRIMALI (Migration) [2020] AATA 2798 (3 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Hiral Ravish SHRIMALI
Mr Ravish Ramesh SHRIMALI
Mr Kahaan Ravish SHRIMALI

CASE NUMBER:  1803936

DIBP REFERENCE(S):  BCC2017/4684932

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         3 February 2020 at 3:24 pm (VIC time)

DATE OF WRITTEN RECORD:                23 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 23 April 2020 at 4:21pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary stay as student – no current enrolment – decision under review affirmed    

LEGISLATION

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

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 6 February 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 3 February 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 applicants applied for a student visa on 8 December 2017 to undertake study in Australia.  At the time the visa application was lodged, the student (Temporary) (Class TU) visa contained two subclasses, subclass 500 student, and subclass 590 student guardian.  This case involves the subclass 500 student visa application.

4. The delegate refused to grant the visa on the basis that the primary 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 primary applicant was a genuine student who intends to stay in Australia temporarily.

5. On 3 February 2020 the applicants appeared before the tribunal to give evidence and present arguments. 

6. While the issue before the delegate was whether the applicant is a genuine temporary entrant, the issue before the tribunal now is whether at the time of the decision the primary applicant meets the enrolment requirements for a student visa. 

7. The criteria for a 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. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. There are secondary applicants in this case are the primary applicant’s husband and child.

8. 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.  Clause 500.211 relevantly required that at the time of this decision the applicant is enrolled in a course of study.  See clause 500.211(a).  This is not a case where the applicant claims to meet alternative criteria in clause 500.211. 

9. Course of study is relevantly defined in clause 500.111 of the regulations as a fulltime registered course. A registered course is defined in the regulations as a course of education or training provided by an institution, body or person that is registered under the Education Services For Overseas Students Act 2000, to provide the course to overseas students.

10. On 16 January 2020 the written invitation to attend today’s hearing 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 today’s hearing.  Such evidence has not been provided.  At the hearing today the applicant was again requested to provide evidence of current enrolment to the tribunal.  A copy of a confirmation of enrolment was not provided by the applicant at the hearing.

11. The applicant informed the tribunal that she is studying, she had some difficulty completing her course on time towards the end of 2019 and due to various medical conditions obtained a modest extension of time to complete her course in January or February of 2020, due to a medical condition she was suffering from at the time.

12. The tribunal informed the applicant that she would have to provide a confirmation of enrolment to the tribunal at the time of hearing so that the tribunal might be satisfied that she is currently enrolled in a registered course at the time of this hearing.  On that basis that the applicant contended she was still studying, the tribunal offered to stand the matter down at 2.30 pm, to enable the applicant to contact her education provider to see if she could procure a confirmation of enrolment to produce to the Tribunal at the time of the hearing.  The matter was adjourned for 30 minutes to enable the applicant to make the relevant inquiries.

13. Shortly after 3 pm the hearing resumed.  The applicant informed the tribunal that she contacted her education provider for the purpose of procuring an updated confirmation of enrolment to evidence the fact that she was still studying at the present time.  The applicant informed the tribunal that a representative with whom she spoke at the education provider said that they would only provide the confirmation of enrolment to the applicant’s migration agent, and not to her personally.  The applicant then contended that the college provided the confirmation of enrolment to her migration agent.

14. However, the applicant further informed the tribunal that her registered agent is currently away and was not returning until this evening, and on that basis she could not produce the confirmation of enrolment to the tribunal at the time of this hearing this afternoon on 3 February 2020.  The tribunal informed the applicant that that placed the tribunal in a position of some difficulty as it did not have before it evidence to satisfy the tribunal that the applicant was currently enrolled in a course of study at the time of the hearing.

15. The applicant informed the tribunal that notwithstanding that she could not produce the confirmation of enrolment, she has only a couple of weeks, two to three weeks, to go to complete her current course which ought to see her complete her course two thirds of the way through February 2020.

16. On the basis of the matters set out above, the tribunal is satisfied that there is no evidence before it at the time of the hearing that the applicant is enrolled in a registered course of study and that applicant has had reasonable opportunities to produce evidence of current enrolment before and during the hearing. 

17. Therefore, the tribunal is not satisfied that at the time of this decision the applicant is enrolled in a course of study and, accordingly, clause 500.211 is not met.  Given the above findings the tribunal finds that the criteria for the grant of a subclass 500 student visa are not met.  As confirmed in the hearing, this case does not involve the subclass 590 student guardian visa.

18. The tribunal notes that because clause 500.211 is not met by the applicant, the criteria for the grant of a student visa are not met by the secondary applicants.  No further enquiry is required in respect of the secondary applicants. For these reasons the tribunal finds that the decision under review should be affirmed. 

19. The tribunal affirms the decision not to grant the applicants in this case Student (Temporary) (Class TU) visas.  The decision is made at 3.21 pm on 3 February 2020. 

    DECISION

20. The Tribunal affirms the decisions under review.

    Vanessa Plain
    Member