Singh (Migration)

[2018] AATA 5203

Singh (Migration) [2018] AATA 5203 (7 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaswant Singh .

CASE NUMBER:  1617167

DIBP REFERENCE(S):  BCC2016/2233308

MEMBER:Stephen Conwell

DATE AND TIME OF

ORAL DECISION AND REASONS:          7 August 2018 at 1:17 pm (VIC time)

DATE OF WRITTEN RECORD:                2 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment – not enrolled in a registered course – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), 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 27 September 2016 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 7 August 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 1617167 for the applicant Jaswant Singh.  The hearing is being conducted via telephone, as the applicant is not located in Melbourne and did not physically attend the hearing.  Mr Singh applied for his Student visa on 1 July 2016 by a decision dated 27 September 2016.  That visa application was refused. 

4. At the time the visa application was lodged, the student temporary visa contained two subclasses.  Subclass 500 is for a Student visa, and subclass 590, being for a Student Guardian visa. The applicant applied for the visa to undertake study in Australia, and does not claim to meet the criteria for a Student Guardian visa. 

5. The delegate in Mr Singh’s case refused to grant the visa on the basis that he did not satisfy clause 500.212, which is contained in schedule 2 to the Migration Regulations, and that was because the delegate was not satisfied that Mr Singh is a genuine student who intends genuinely to stay in Australia temporarily.

6. Mr Singh appeared before the Tribunal today by telephone to present arguments and give evidence.  The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  As explained to Mr Singh in the course of the hearing, whilst the issue before the delegate was whether he is a genuine temporary entrant, the issue before the Tribunal now is whether, at the time of this decision, he meets the enrolment requirements for a Student visa. 

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 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. 

8. 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 that 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. 

9. ‘Course of study’ is relevantly defined in clause 500.111 of the regulations as a full-time registered course.  A registered course is defined in the Regulations as ‘a course of education or training provided by an institution, body, or person registered under the Education Services or Overseas Students Act’. 

10. On 10 July 2018 a written invitation to attend today’s hearing was sent to the applicant.  In that invitation the applicant was requested to provide evidence of enrolment in a full-time registered course, to the Tribunal, at least seven days before today’s hearing.  Such evidence has not been provided.  At today’s hearing the applicant was again requested to provide this evidence to the Tribunal, such as a copy of a current certificate of enrolment.  The applicant has not provided such evidence, and in his sworn evidence before the Tribunal he confirmed that he is not enrolled in a course of study. 

11. Accordingly there is no evidence before the Tribunal that the applicant is enrolled in any course of study.  Therefore the Tribunal is not satisfied that at the time of this decision, that the applicant Jaswant Singh is enrolled in a course of study.  Accordingly, clause 500.211 is not met.

12. 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. 

13. The Tribunal therefore affirms the decision not to grant the applicant a Student (temporary) (class TU) visa. 

14. This decision is made at 1.17pm on 7 August 2018.

    DECISION

15. The Tribunal affirms the decision under review.

    Stephen Conwell
    Member