SINGH (Migration)

[2018] AATA 3163

SINGH (Migration) [2018] AATA 3163 (30 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jatinder SINGH

CASE NUMBER:  1709146

HOME AFFAIRS REFERENCE(S):           BCC2017/473957

MEMBER:Wendy Banfield

DATE:30 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 30 July 2018 at 4:56pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Course enrolment –
Completed other courses in Australia – Gap in study – Father ill – Poor academic performance – Enrolment cancelled – Decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
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 12 April 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 6 February 2017. 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 it was determined the genuine temporary entrant criteria had not been met.

   Background

4. The applicant is a citizen of India and is currently 30 years old. He came to Australia on 15 July 2009 as the holder of a Subclass 572 visa. Since arriving in Australia the applicant has completed a Diploma of Marketing and Communication and was enrolled in a Bachelor of Business. He also provided evidence of having undertaken a Certificate IV in Commercial Cookery.

5. The applicant appeared before the Tribunal on 25 July 2018 to give evidence and present arguments.

6. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 is enrolled in an approved course of study, as required for the grant of a student visa.

9. 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.

10. ‘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.

    On 27 June 2018 the applicant was invited to attend a hearing scheduled for 25 July 2018. The invitation asked the applicant to provide a copy of a current Certificate of Enrolment (COE) or other documents that show he is currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994. The applicant was advised that a COE is required for the grant of a student visa. The applicant did not submit a COE as requested.

11. At the Tribunal hearing on 25 July 2018 the applicant was advised that in order to be eligible for a student visa, he must be enrolled in an approved course of study at the time of decision. The applicant did not provide evidence of enrolment or other documents that show he is enrolled in an approved course of study.

12. During the hearing, the Tribunal advised the applicant that in order to be eligible for the grant of a student visa, he is required to be enrolled in an approved course of study.

13. In accordance with section 359AA of the Migration Act, the Tribunal put to the applicant particulars of information that it considered would be the reason, or a part of the reason, for affirming the decision under review. The information was relevant to the review because, subject to the applicant’s comment or response, it indicated he was not enrolled in a course of study as required for the grant of a student visa. The applicant was advised that if the Tribunal relied on the information it may lead to the decision under review being affirmed. He was invited to comment on or respond to the information and could seek additional time to comment or respond. The applicant was told that if he did require additional time to respond to the information, the Tribunal would consider his request and may adjourn the hearing.

14. The particulars of the information put to the applicant was that according to the Provider Registration and International Student Management System (PRISMS) records, the applicant is not enrolled to study. The applicant was given a copy of the PRISMS record that indicated his last enrolment in a Bachelor of Business had been cancelled and he is not currently enrolled. The applicant was invited to comment on the information.

15. In response the applicant claimed he had been studying the Bachelor of Business but had taken time off due to his father being ill. He said the college had initially agreed to his request for leave but later cancelled his COE. The applicant also said he had trouble paying the fees for his course. The applicant submitted an academic transcript for his Bachelor of Business that showed he had been granted exemptions 8 units on 1 May 2017. The transcript also shows the applicant received two absent fail grades and 14 units not attempted. A letter from the college stated the applicant had completed 33% of the course. The applicant also submitted a Certificate IV in Commercial Cookery dated 23 May 2017 and a transcript from Victorian College of Vocational Excellence which does not appear on his PRISMS record.

16. The applicant advised he had applied for a Subclass 457 visa which was refused and he wants to continue studying. He said he has inquired with two colleges about enrolment but has left the matter with his migration agent. The Tribunal found the applicant to be vague and evasive about his current circumstances during the hearing. The Tribunal has considered the evidence provided and the applicant’s submissions but is not satisfied the applicant has a current COE, or other documents that show he is presently enrolled to study.

17. 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.

18. 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

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

    Wendy Banfield
    Member