Singh (Migration)

[2018] AATA 3872

Singh (Migration) [2018] AATA 3872 (6 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harjot Singh

CASE NUMBER:  1704133

HOME AFFAIRS REFERENCE(S):           BCC2016/3612489

MEMBER:Stephen Witts

DATE:6 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 06 August 2018 at 11:40am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment in a course – finished previous courses – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 2 cls 500.111, 500.211, 500.212

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 1 March 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 30 October 2016. 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) because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

4. The applicant appeared before the Tribunal by phone on 6 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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. The issue in the present case is whether the applicant intends to stay in Australia temporarily.

   Enrolment (cl.500.211)

7. 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.

8. ‘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.

9. Adopting the procedure of the Act 359AA, the Tribunal read out the following statement to the applicant:

10. I’d like to talk to you about your study history and to do that I’m going to put to you formally under the law, a piece of information that I have. The information that I will put to you is something I consider would be the reason, or part of the reason, for affirming the decision under review.

11. I have before me, Provider Registration and International Student Management System records, otherwise referred to as PRISMS. This PRISMS record from a database that is kept by the education providers and details all of your certificates of enrolments, the dates that you remained enrolled and the outcome of the courses.

12. This information is relevant to the review because it may lead me to form the view that it documents a history of unrelated courses. It lists many courses that weren’t started, or that were started and shortly thereafter cancelled.

13. The consequence of this information being relied on by me may be that I form the view that you do not meet the requisite criteria, more specifically that you are not a genuine student. This may mean that you are refused to visa which you have applied for.

14. You may comment on or otherwise respond to this information. You may wish to ask for additional time to comment on or respond to the information.

15. The applicant did not request extra time to review his study history. The Tribunal reviewed the applicant’s study history as outlined in his PRISMS record.

16. The Tribunal asked the applicant to confirm that, in fact he was not enrolled to study a course here in Australia and that his last enrolment was an Advanced Diploma of Leadership and Management which he finished on 19 November 2017. The Tribunal noted to the applicant that the issue under discussion was now his enrolment to study a course here in Australia and not his status as a genuine temporary entrant. The applicant confirmed that he was not enrolled to study a course here in Australia and had not studied since November 2017.

17. When asked by the Tribunal to give evidence as to why he was not enrolled the applicant indicated that he had been suffering from depression during some time during his study here in Australia and he did have a car crash in 2013 that he needed to recover from. The Tribunal is concerned by this evidence as, since 2013, the applicant has in any case studied and finished four courses. The Tribunal finds that the applicant is not enrolled to study here in Australia and has not provided any specific evidence as to why that was the case.

18. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

19. 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

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

    Stephen Witts
    Member