Sidhu (Migration)

[2019] AATA 2911

Sidhu (Migration) [2019] AATA 2911 (14 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Gurpreet Kaur Sidhu
Mr Shaminder Singh Singh
Mr Ekamkar Singh Sidhu
Mr Gunkar Singh Sidhu

CASE NUMBER:  1819351

DIBP REFERENCE(S):  BCC2018/2248817

MEMBER:M. Edgoose

DATE AND TIME OF

ORAL DECISION AND REASONS:          14 March 2019 at 1:06 pm (VIC time)

DATE OF WRITTEN RECORD:                10 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – evidence of adequate arrangements for health insurance – evidence of health insurance not provided – not enrolled in an approved course at the time of decision – members of the family unit of a primary visa applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.215, 500.311

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 2 July 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 14 March 2019 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. This is an oral decision in Case Number 1819351 and the applicant name is Mrs Gurpreet Kaur Sidhu. 

4. This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 July 2018 to refuse to grant you a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

5. You applied for the visa on 24 May 2018 to undertake study in Australia. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained two sub-classes: Sub-class 500 (Student) and Sub-class 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Sub-class 590 (Student Guardian) visa.

6. The delegate in your case refused to grant the visa on the basis that you did not satisfy the requirements of cl.500.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant met the requirements for health insurance.

7. You appeared before the tribunal today via telephone to give evidence and present arguments. 

8. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. 

9. 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 in the present case is the applicant did not meet the Health insurance requirements.

10. On 18 February 2019 a written invitation to attend the hearing today was sent to you.  In that invitation you were requested to provide evidence you meet the Health insurance requirements and also your current Confirmation of Enrolment.

11. Prior to this hearing, the applicant has not provided any evidence which satisfies the health insurance requirements.

12. At the hearing today you were again requested to provide this evidence to the Tribunal, such as evidence you meet the Health Insurance requirements. You have not done so.  

13. The applicant requested further time in which to submit evidence of health insurance.  The Tribunal carefully considered the request for further time and after due consideration the Tribunal is not satisfied that an extension of further time is appropriate for the following reasons.

    1.  The applicant is not currently enrolled in a course of study.

    2.  The decision of the department was made on 2 July 2018 and the applicant has had plenty of time to gain the relevant health insurance.

    3.  The invitation to attend the hearing today sent out on 18 February on page 2 requested that you supply particular information to the Tribunal and you have not done so.

14. Accordingly, there is no evidence before me that you meet the Health Insurance requirements.

15. Therefore the Tribunal is not satisfied that at the time of this decision, the applicant meets the Health Insurance requirements and accordingly cl.500.215 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. For these reasons, I have concluded that the decision under review should be affirmed.

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

18. In regard to the applicant’s husband and two children, Mr Shaminder Singh Sidhu, Master Gunkar Singh Sidhu and Master Ekamkar Singh Sidhu, who are dependants on the applicant’s visa, the Tribunal finds that their applications are made as dependants on the applicant’s visa and there is no evidence before the Tribunal that they seek to rely upon any other grounds on which to base their application. Accordingly, their applications are based on the requirement that they satisfy clause 500.311 of Schedule 2 to the Migration Regulations.

19. Clause 500.311 requires a dependent visa applicant to be a member of the family unit of a person who holds a Student visa having satisfied the primary criteria for the grant of that visa. Given that the Tribunal finds that the first named applicant, Mrs Gurpreet Kaur Sidhu, does not satisfy the primary criteria in clause 500.215 of Schedule 2 to the Migration Regulations, it follows that the Tribunal finds that Mr Shaminder Singh Sidhu, Master Gunkar Singh Sidhu and Master Ekamkar Singh Sidhu are not members of the family unit of a primary visa applicant who holds a Student visa by having satisfied the primary criteria for the grant of that visa. This means that Mr Shaminder Singh Sidhu, Master Gunkar Singh Sidhu and Master Ekamkar Singh Sidhu do not satisfy cl.500.311, and the decision under review should be affirmed.

20. This decision is made at 1:06pm on 14 March 2019.

    DECISION

21. The Tribunal affirms the decisions under review.

    M. Edgoose
    Member