SHUKLA (Migration)

[2018] AATA 1900

SHUKLA (Migration) [2018] AATA 1900 (19 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms PRITI SHUKLA
Mr MAHAVIRSINGH SAPRA
Master GURVIR SINGH SAPRA

CASE NUMBER:  1621120

DIBP REFERENCE(S):  BCC2016/2475098

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          19 April 2018 at 11:21 am (VIC time)

DATE OF WRITTEN RECORD:                9 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 09 May 2018 at 11:17am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine Temporary Entrant – Current enrolment of offer – Full course capacity – Decision under review affirmed

LEGISLATION
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 24 November 2016 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 19 April 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

3. To be eligible for the grant of a student visa, applicants must satisfy a range of requirements set out in the regulations.

4. You applied for a student visa on 26 July 2016 and your application was refused on 24 November 2016 because having considered your circumstances the delegate was not satisfied you met the genuine temporary entrant criteria and therefore did not satisfy clause 500.212.

5. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision.

6. Approximately one month ago, on 21 March we sent you an invitation to today’s hearing and we asked you to provide a range of evidence. The requested evidence was numbered and number one was a request that you provide a current certificate of enrolment or other documents that show you are currently enrolled in a course of study as defined in clause 500.111 of the Migration Regulations which it stated is required for the grant of a student visa.

7. What you provided was a ‘Letter of Offer’ dated 8 April 2017 from Holmes Institute for a course which commenced in July 2017 which is 9 months ago. This is not a “current offer of enrolment” and does not satisfy clause 500.211 which says the applicant is enrolled in a course of study.

8. Recognising what you had provided did not satisfy the requirements a Tribunal officer telephoned you yesterday and explained to you that what was required was evidence of current enrolment. You told the officer and have again told the Tribunal today that you spoke to the college who told you they have met their quota issuing CoE’s for this semester meaning presumably that their course is full. However the course you are talking about is a course that started in March and the question is why you do not have an enrolment in the next course.

9. The other question, given the requirement that you provide current evidence of enrolment is why you would not have made enquiries about gaining enrolment at a different college. When asked that question you responded that the staff at Holmes are really good and so that’s the only one you looked at.

10. The role of the Tribunal is to take a fresh look at your application and to consider whether you satisfy the requirements for the grant of a student visa.

11. While your application was refused because the delegate was not satisfied you met the genuine temporary entrant criteria, you have today told the Tribunal you are not currently enrolled, and therefore do not satisfy clause 500.211.

12. As was explained in the letter sent with the hearing invitation current enrolment is a prerequisite for the grant of a visa.

13. It is only when someone is enrolled in a course is it possible to work out other evidence required such as financial evidence which comprises course fees and living expenses for the duration of the course in which the applicant is enrolled, overseas student health cover which iscrequired for the duration of the course et cetera et cetera.

14. As you are not currently enrolled you do not satisfy clause 500.211 which is a prerequisite for the grant of a student visa.

15. Applicant: “If I go back to the college say at the end of the coming week and they give me a CoE can I come back to the Tribunal in the same week?”.

16. This issue was discussed during the hearing. What you told the Tribunal is that there is a possibility a place may become available in the future. The Tribunal is not prepared to hold this matter open in case a place becomes available.

17. The Tribunal believes you have had ample notification of what was required and ample time to provide the required evidence but have failed to do so.

18. The Tribunal is not prepared to grant further time. You do not meet clause 500.211 and are therefore not eligible for the grant of a student visa.

19. As you do not meet clause 500.211 the Tribunal does not intend to consider whether you meet the genuine temporary entrant criteria. As you do not meet clause 500.211 it is the decision of this Tribunal to affirm the decision under review.

    DECISION

20. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member