Singh (Migration)

[2019] AATA 2682

Singh (Migration) [2019] AATA 2682 (3 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jagmohan Singh

CASE NUMBER:  1723439

HOME AFFAIRS REFERENCE(S):           BCC2017/2718552

MEMBER:Vanessa Plain

DATE:3 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 03 June 2019 at 12:05pm

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

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.111, 500.211, 500.212, 500.218
Education Services for Overseas Students Act 2000

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 and Border Protection on 13 September 2017 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 31 July 2017. 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).

4. On 21 February 2019, the Tribunal formally wrote to the applicant pursuant to s.359(2) of the Act inviting the applicant to provide further information to the Tribunal in writing. The invitation advised that if the information was not provided in writing by the prescribed period, being 7 March 2019, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. By letter dated 6 March 2019 sent to the applicant, the Tribunal granted an extension of time to the applicant to provide the information.  The letter provided that the applicant must provide the further information by 15 April 2019.

6. The applicant provided his response to the 359(2) questionnaire to the Tribunal prior to the 15 April 2019 deadline (Response).  In his response, the applicant consented to the Tribunal deciding his review without a hearing.  Accordingly, the Tribunal will determine the review application “on the papers”.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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. Although the issue before the Delegate was whether the applicant was a genuine temporary entrant, the issue before the Tribunal at the time of this decision, is whether the applicant is enrolled in a course of study.

9. 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.

10. ‘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.

11. In this Response, the applicant admits that he does not have a current Confirmation of Enrolment (COE) in a registered course of study and he further admits that he first enrolled in an English course at Elicos in July 2017, however he never commenced the course.  

12. Therefore, the Tribunal is satisfied that at the time of this decision, based on the based on the evidence set out above, the applicant is not enrolled in a course of study and accordingly cl.500.211 is not met.

13. 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

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

    Vanessa Plain
    Member