Singh (Migration)

[2020] AATA 3569

Singh (Migration) [2020] AATA 3569 (8 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Davinder Singh

CASE NUMBER:  1902365

DIBP REFERENCE(S):  BCC2018/4975998

MEMBER:Peter Booth

DATE AND TIME OF

ORAL DECISION AND REASONS:         8 July 2020 at 1:57 pm (VIC time)

DATE OF WRITTEN RECORD:                27 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 27 July 2020 at 2:31pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – not enrolled in a course of study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 January 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 8 July 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. This is an oral decision in matter number 1902365, in the matter of Singh.  This is an application for review of a decision made by the delegate on 14 January 2019 to refuse to grant you a Student Visa.  You applied for the visa on 9 November 2018 to undertake study in Australia. 

4. At the time the visa application was lodged, the Student Visa 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 visa. 

5. The delegate, in your case, refused to grant the visa on the basis that you did not satisfy the requirements of clause 500.212 of schedule 2 to the Regulations (1994), because the delegate was not satisfied you were a genuine temporary entrant. 

6. You appeared before the Tribunal today to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  While the issue before the delegate was whether you were a genuine temporary entrant, the issue now is whether, at the time of this decision, you meet the enrolment requirements.

7. The criteria for a subclass 500 visa are set out in part 500 of schedule 2 to the Regulations (1994). 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 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 . ‘Course of study’ is relevantly defined in clause 500.111 as a full-time registered course. ‘Registered course’ is defined in regulation 1.03 as a course of educational 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.

8. On 19 May 2020, a written invitation to attend the hearing was sent to you.  In that invitation you were requested to provide evidence of enrolment in an approved course of study to the Tribunal at least seven days before the scheduled date of the hearing.  No such evidence has been provided.  At the hearing today you were again requested to provide this evidence, such as a copy of a confirmation of enrolment. 

9. In the evidence today you have confirmed that you were last enrolled in an English course in November 2018.  You further confirmed in your evidence that you are not currently enrolled in any course of study in Australia.  Accordingly, there is no evidence before me that you are now enrolled in any course of study.  Therefore, 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. 

10. For these reasons, the Tribunal has concluded that the decision under review should be affirmed. 

11. The Tribunal affirms the decision not to grant the applicant a Student Temporary class TU visa.

    DECISION

12. The Tribunal affirms the decision under review.

    Peter Booth
    Member