Singh (Migration)

[2018] AATA 4341

Singh (Migration) [2018] AATA 4341 (18 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hardeep Singh

CASE NUMBER:  1714827

DIBP REFERENCE(S):  BCC2017/947031

MEMBER:Stephen Conwell

DATE AND TIME OF

ORAL DECISION AND REASONS:          18 September 2018 at 11:46 am (VIC time)

DATE OF WRITTEN RECORD:                5 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

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


LEGISLATION
Migration Act 1958 (Cth), s
Migration Regulations 1994 (Cth), Schedule 2 cls 500.111, 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 26 June 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 18 September 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. This is an oral decision in file number 1714827, the applicant, Mr Hardeep Singh, date of birth 18 November 1992.  Mr Singh applied for his Student visa on 10 March 2017.  By a decision dated 26 June 2017 that visa application was refused.  The application was refused because the delegate was not satisfied that Mr Singh genuinely intends to stay temporarily in Australia.  At the time of the visa application the Student Temporary visa class contained two subclasses.  The first subclass is for a Student visa and the second subclass is for a Student Guardian visa.

4. At today’s hearing the applicant confirmed that he is applying for a Student visa and does not claim to meet the criteria for a Student Guardian visa.  Mr Singh 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. 

5. As explained at hearing, the delegate refused the applicant’s visa on the grounds that he did not satisfy the requirements of Clause 500.212 of Schedule 2 to the Migration Regulations which is the delegate not being satisfied that Mr Singh was a genuine student who intends genuinely to stay in Australia temporarily.

6. As discussed at hearing, whilst the issue before the delegate was whether the applicant was a genuine temporary entrant, the issue before the Tribunal now is whether at the time of decision, he meets the enrolment requirements for a Student visa. The criteria for a subclass 500 Student visa are set out in Part 500 of Schedule 2 of the Regulations. The primary criteria in Clause 500.211 to Clause 500.218 must be satisfied by at least one applicant.

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.  Clause 500.211 relevantly requires at the time of this decision the applicant be enrolled in a course of study. The applicant does not claim to meet any of the alternative criteria in Clause 500.211.

8. A course of study is relevantly defined in Clause 500.111 of the Regulations as a full time registered course.  ‘Registered course’ is defined in the Regulations as a course of study or training provided by an institution, body or person that is registered under the Education Services for Overseas Students Act to provide a course to oversee students.

9. On 31 August 2018 a written invitation to attend today’s hearing was sent to the applicant.  In that invitation he was requested to provide evidence of enrolment in a registered course at least seven days before today’s hearing.  Such evidence has not been provided.  At today’s hearing Mr Singh confirmed that he is not currently enrolled in a course of study.

10. Mr Singh’s PRISMS record was discussed with him, pursuant to Section 359AA of the Migration Act. Mr Singh considered his PRISMS record and did not request an adjournment in which to review the information. He agreed to discuss the record directly. His PRISMS record confirmed that he was last enrolled on 13 April 2018 and that he has not been enrolled in a course of study since that date.

11. Mr Singh explained to the Tribunal that he has received conflicting migration advice regarding his immigration status and he requested additional time in which to obtain a COE and enrol in a course of study.  The Tribunal considered the request but declined to grant it.

12. The Tribunal declined to grant the request because Mr Singh was put on notice by the invitation to attend today’s hearing that he was required to provide proof of enrolment.  On that basis the Tribunal declined a request for time to obtain a COE and on the evidence before it, the applicant is not enrolled currently in any course of study in Australia.

13. Accordingly, there is no evidence before the Tribunal that Mr Singh is enrolled in any course of study, therefore the Tribunal is not satisfied that at the time of this decision he is enrolled in a course of study and accordingly Clause 500.211 is not met.

14. 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 student guardian visa.  For these reasons the Tribunal concludes that the decision under review should be affirmed.

15. The decision of the Tribunal therefore is to affirm the decision not to grant the applicant a student temporary class TU visa.

16. The time is now 11.46 on 18 September 2018.  The Tribunal affirms the decision not to grant the applicant a Student visa.

17. This hearing is now concluded.  Thank you for your attendance, Mr Singh.

    DECISION

18. The Tribunal affirms the decision under review.

    Stephen Conwell
    Member