Singh (Migration)

[2018] AATA 5571

Singh (Migration) [2018] AATA 5571 (13 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Surjit Singh

CASE NUMBER:  1806605

DIBP REFERENCE(S):  BCC2018/345256

MEMBER:Adrienne Millbank

DATE AND TIME OF

ORAL DECISION AND REASONS:          13 November 2018 at 11:13 am (QLD time)

DATE OF WRITTEN RECORD:                28 November 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 28 November 2018 at 12:14pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment – 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), r 1.03; Schedule 2, cls 500.111, 500.211

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 February 2018 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 13 November 2018 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. You applied for the visa on 21 January 2018 to undertake study in Australia.  At that time the visa application was lodged the student (temporary) (class TU) 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 (student guardian) visa.

4. You applied for the visa on 21 January 2018 to undertake study in Australia.  At that time the visa application was lodged the student (temporary) (class TU) 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 (student guardian) visa.

5. You appeared before the tribunal today to give evidence and present arguments.  While the issue before the delegate was whether you are a genuine temporary entrant, the issue before the tribunal now is whether at the time of decision you meet the enrolment requirements for a student visa.

6. The criteria for a subclass 500 (student) visa are set out in part 500 of schedule 2 to the Regulations.  The primary criteria in clause 500.211 to clause 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.

7. 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.

8. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: clause 500.211(a).  The applicant does not claim to meet any of the alternative criteria in clause 500.211.

9. Course of study is relevantly defined in clause 500.111 of the Regulations as a fulltime 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 the Education Services for Overseas Students Act 2000 to provide the course to overseas students.

10. On 18 October 2018 a written invitation to attend today's hearing was sent to you.  In that invitation you were requested to provide evidence of enrolment in a fulltime registered course to the tribunal at least seven days before today's hearing.  Such evidence has not been provided.

11. At the hearing today you were again asked to provide evidence to the tribunal regarding your current enrolment.  You were not able to do so.

12. In your sworn evidence before the tribunal you confirmed that you were last enrolled in a Certificate III in Light Vehicle Mechanical Technology but that this course was cancelled in March 2018.

13. You further confirmed in your sworn evidence that you are not enrolled in any course of study in Australia.  The tribunal accepts that you are not able to enrol because of your current bridging visa conditions but nevertheless finds that you are not enrolled in a current course of study.

14. Accordingly, there is no evidence before me that you are enrolled in any course of study, therefore the tribunal is not satisfied that at the time of this decision you are enrolled in a course of study and accordingly, clause 500.211 is not met.

15. Given the above findings the tribunal finds that the criteria for the grant of a subclass 500 (student) visa are not met.  As confirmed in the hearing, the applicant does not claim to meet the criteria for a subclass 590 (student guardian) visa.

16. For these reasons I have concluded that the decision under review should be affirmed.  The tribunal affirms the decision not to grant the applicant a student (temporary) (class TU) visa.

    DECISION

17. The Tribunal affirms the decision under review.

    Adrienne Millbank
    Member