Simerjeet Singh (Migration)

[2018] AATA 1676

Simerjeet Singh (Migration) [2018] AATA 1676 (26 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Simerjeet Singh

CASE NUMBER:  1620872

DIBP REFERENCE(S):  BCC2016/2808005

MEMBER:Meredith Jackson

DATE:26 April 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 26 April 2018 at 8:29am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant – Enrolment in a registered course – Current enrolment status – Decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000, Div 3, Pt 2
Migration Act 1958, ss 65, 366A
Migration Regulations 1994, r 1.03, Schedule 2 cls 500.111, 500.211, 500.212

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 on 17 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 24 August 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 delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

Enrolment requirement

5.    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.

6. ‘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.

Issue in the present case

7.    The issue in the present case is whether the applicant is enrolled in a course of study at the time of decision.

Background

8.    The applicant’s study history as recorded in the delegate’s decision is that since arriving in Australia in 2008 he has enrolled in 25 courses across the fields of English language, hospitality management, commercial cookery, business, management and marketing and has finished 11 of them over a combined study period of approximately 44 months.

9.    On 17 November 2016 the delegate refused to grant the applicant a visa.

1. On 7 December 2016 the applicant applied to the Tribunal for a review of the delegate’s decision.

2. On 23 March 2018 a written invitation to attend a Tribunal hearing on 18 April 2018 was sent to the applicant. In that invitation the applicant was asked to provide evidence of enrolment prior to the scheduled date of the hearing.

3. On 9 April 2018 the applicant through his representative sought to postpone the hearing for three months to give the representative more time to assemble and provide documents and statements to the Tribunal. 

4. On 16 April 2018 the Tribunal carefully considered the request but did not grant a postponement, however advised the applicant that the representative was enabled by 366A of the Migration Act to present post-hearing submissions.

5. On 16 April 2018, the applicant again sought an adjournment, this time for 28 days for the purpose of providing written statements, documents and other evidence. The Tribunal carefully considered but did not grant the postponement, for the reason that the initial hearing invitation was sent on 23 March 2018; and, the applicant’s review application was lodged with the Tribunal on 7 December 2016, 16 months prior to the hearing notification. The Tribunal found the applicant had had ample opportunities to gather, consolidate and provide submissions.

6. The Tribunal notes in this regard:

   (a)The Tribunal notified the applicant of the hearing date on 23 March 2018, 25 days prior to the hearing on 18 April 2018. The standard notification requirement is 14 days, thus the applicant was initially given an additional period of 11 days in which to submit evidence.

   (b)The applicant, by his evidence, did not appoint a migration agent until 17 days after the hearing invitation. Between that appointment on 9 April and the hearing on 18 April the agent had 7 days in which to submit evidence and \the applicant was advised it was possible for his representative to submit post-hearing.

   (c)No written statements or other documentary evidence was submitted to the Tribunal prior to the hearing or at the hearing; and none has been submitted since. The migration agent did not attend the hearing.

Enrolment status

1. The applicant was notified of the delegate’s decision to refuse the visa in November 2016.  In January 2017 he sought and secured enrolment in an Advanced Diploma of Marketing, but said that the course was subsequently cancelled by the institution.

2. The applicant said he did not enrol in any other courses. He told the Tribunal his bridging visa did not allow him to study, but did not provide evidence of such a visa condition.

3. In the hearing the Tribunal advised the applicant that while the issue before the delegate at the time of application was whether the applicant was a genuine temporary entrant under clause 500.212(a) of the Regulations, the issue before the Tribunal, at the time of decision, was whether the applicant met the enrolment criterion in 500.211(a) of the Regulations. The Tribunal advised the applicant that the Tribunal could affirm the decision to refuse the visa based on any applicable visa criteria, including enrolment in a course of study, and that the Tribunal was actively considering the enrolment criterion.

4. The Tribunal asked whether the applicant was able to provide evidence of current enrolment in a registered course. The applicant said that he could not, as he was not currently enrolled.

5. The Tribunal advised the applicant that if he did not have relevant enrolment in a course, the Tribunal could affirm the decision on that basis. The Tribunal then asked the applicant if he understood that without relevant enrolment, the Tribunal might affirm the decision not to grant the visa. The applicant replied that he understood.

6. The applicant stated he had visited two or three providers to discuss enrolment but found that they would not enrol him because his visa had been refused and he thought all providers would say the same. He presented no evidence that he had been refused enrolment on the basis of his visa status.

7. The Tribunal accepts the applicant’s statement that he is not currently enrolled and notes that at no stage during the request for postponement did the applicant request more time to secure enrolment; by contrast, on his own evidence he did not consider enrolment in his preferred undergraduate course was possible in light of his visa refusal.

8. The Tribunal is satisfied that at the time of this decision, the applicant is not enrolled in a full-time registered course of study and that cl.500.211(a) is not met. Accordingly, as the applicant does not claim to meet any of the alternative criteria in cl.500.211, cl.500.211 is not met.

Conclusion

1. 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

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

M. Jackson
Member