Singh (Migration)

[2019] AATA 5007

Singh (Migration) [2019] AATA 5007 (13 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dilawar Singh

CASE NUMBER:  1922501

HOME AFFAIRS REFERENCE(S):           BCC2018/4247096

MEMBER:Meredith Jackson

DATE:13 November 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 13 November 2019 at 11:56am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – course enrolment – no evidence of enrolment provided – did not attend hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 500.211, 500.217

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 Home Affairs on 24 July 2019 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 29 September 2018. 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 your case refused to grant the visa on the basis that you did not satisfy the requirements of cl. 500.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that you met the enrolment criterion.

4. On 24 October 2019 you were invited to appear before the Tribunal on 13 November 2019 to give evidence and present arguments. You did not attend the hearing at the scheduled time and place.

5. You were assisted in relation to the review by your registered migration agent. The agent did not attend the hearing.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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 your case is whether you meet the enrolment requirement.

   Enrolment (cl.500.211)

8. 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). You do not claim to meet any of the alternative criteria in cl.500.211.

9. ‘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.

10. In your invitation to the hearing sent to you on 24 October 2019, it was requested that you provide to the Tribunal evidence of enrolment in a full-time registered course; to provide documents relating to your previous studies in Australia; and to provide any documents on which you intend to rely; and do so at least seven days before today’s hearing.

11. You have not responded to the hearing invitation. You have not provided to the Tribunal any evidence of enrolment in a course of study.  You did not attend the hearing and did not provide any submissions to the Tribunal concerning why you did not attend.

    The delegate’s decision

12. You have provided the delegate’s decision of 27 July 2019 as part of the review process. The Tribunal has duly considered the information in the delegate’s decision.

13. The decision records that when you applied for the visa on 29 September 2018 you provided a Confirmation of Enrolment (COE) for a Diploma of Hospitality Management course that was cancelled by your education provider on 3 April 2019. You also provided a COE for an Advanced Diploma of Hospitality Management course that was cancelled by your education provider on 3 April 2019.

14. The decision records that on 11 April 2019 you were requested by the department to provide a new COE and given 28 days to respond to the request. You did not respond. At the time of the delegate’s decision you had not provided any evidence of an enrolment in a course of study.

    Evidence before the Tribunal

15. At the time of this decision, the Tribunal has no evidence before it that you are enrolled in a specified course.

16. The Tribunal is satisfied that you have had sufficient time in which to become enrolled as required.  You have been aware since 11 April 2019 that departmental information showed you were not enrolled in a specified course as required for the grant of the visa; and aware since 27 July 2019 that you did not satisfy the enrolment requirement. You have been aware since the Tribunal sent you an invitation on 24 October 2019 of the need to provide the Tribunal evidence of enrolment in a specified course. Despite this, you did not enrol in a specified course.

17. Further, the Tribunal takes into account that you did not appear at the scheduled review hearing. In your invitation to the hearing you were advised by the Tribunal that if you did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable you to appear before us. The Tribunal notes you have not provided a reason for the non-appearance.

    Conclusion on enrolment criterion

18. The Tribunal has considered the evidence before it and is not satisfied that at the time of this decision, you are enrolled in a course of study; therefore, the Tribunal finds you do not satisfy the enrolment criterion (cl.500.211).

19. 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

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

    Meredith Jackson
    Member