Singh (Migration)

[2019] AATA 1985

Singh (Migration) [2019] AATA 1985 (26 April 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Hirdepreet Singh

CASE NUMBER:  1729156

DIBP REFERENCE(S):  BCC2017/3135451

MEMBER:  Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:          26 April 2019 at 1:55 pm (VIC time)

DATE OF WRITTEN RECORD:                20 June 2019

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 20 June 2019 at 4:10pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – not enrolled in a course of study at time of decision – 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 2 November 2017 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 26 April 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 statement of the decision and reasons of the Administration Appeals Tribunal in case number 1729156 in relation to an application for review brought by Hirdepreet Singh. The applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister on 2 November 2017. That decision refused to grant him a temporary student visa under section 65 of the Migration Act.

4. The applicant applied for the visa on 30 August 2017. The delegate in this case refused to grant him a visa because the delegate considered that he did not satisfy the requirements of clause 500.212 of schedule 2 of the Migration Regulations. Specifically the delegate did not consider him to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the tribunal with the review application that was filed on 22 November 2017.

5. The applicant appeared before the tribunal today to give evidence and present arguments. The applicant was assisted in relation to the hearing by their registered migration agent Mr Valahji Sani. The tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. While the determinative issue before the delegate was whether the applicant met the genuine temporary entrant criterion it became clear at the outset of today’s hearing that the applicant did not meet other criteria that must be satisfied for the grant of a student visa. Clause 500.211 of the Regulations requires the applicant to be enrolled in a course of study at the time the tribunal makes its decision.

7. At the commencement of today’s hearing the tribunal inquired of the applicant as to whether he was currently enrolled in a registered course of study. The applicant stated that he was not currently enrolled and was unable to produce any documents demonstrating to the tribunal’s satisfaction that he is currently enrolled in a registered course of study.

8. In evidence the primary applicant stated that he had been enrolled in a Bachelor of Business last year but this enrolment had been cancelled by the course provider. Upon inquiry by the tribunal, the applicant’s registered migration agent confirmed it to be the case that the applicant is not currently enrolled in a registered course of study.

9. When the tribunal wrote to the applicant via letter inviting him to attend this hearing the tribunal advised that it was necessary for him to produce a confirmation of enrolment. It was made clear in that letter that proof of enrolment was a requirement for the grant of a student visa.

10. For the purposes of the present determination the tribunal is not satisfied that the applicant is currently enrolled in a course of study for the purposes of clause 500.211(a) of the Regulations. In these circumstances the question of whether the applicant meets the criteria

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under clause 500.211 has become determinative for the purposes of the outcome of the case now before the tribunal.

1. If the applicant does not meet the criteria under clause 500.211 there is no point in the tribunal proceeding to consider whether the genuine temporary entrant criterion is met under clause 500.212. The applicant does not meet the regulatory requirements for the grant of a student visa because there is no evidence satisfying me of the criteria in clause 500.211 of the Regulations.

2. In case number 1729156 the tribunal affirms the decision not to grant the applicant a student temporary class TU visa.

   DECISION

3. The Tribunal affirms the decision under review.

   Dr Jason Harkess
   Member

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