Singh (Migration)

[2018] AATA 1672

Singh (Migration) [2018] AATA 1672 (26 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Navjot Singh

CASE NUMBER:  1621133

DIBP REFERENCE(S):  BCC2016/2865075

MEMBER:M. Jackson

DATE:26 April 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 26 April 2018 at 8:38am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine student – Enrolment in a registered course – Evidence of enrolment – Lapsed offer – Decision under review affirmed

LEGISLATION
Education Services for Overseas Student Act 2000, Div 3 Pt 2
Migration Act 1958, s 65
Migration Regulations 1994, 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 on 22 November 2016 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 29 August 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. 500.211(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine student who intends genuinely to stay in Australia temporarily.

4.    The applicant appeared before the Tribunal on 18 April 2018 to give evidence and present arguments.

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.

7.    Clause 500.211 relevantly requires that at the time of 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.    With limited exceptions, none of which is relevant to the present case, the Regulations require that at the time of the decision the applicant must be enrolled in a course of study of a type specified at the time of application.

9. ‘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.

1. A written invitation to attend the hearing was sent to the applicant on 23 March 2018. In that invitation the applicant was requested to provide evidence of enrolment prior to the scheduled date of the hearing. 

2. In the hearing the Tribunal advised the applicant that while the delegate decided to refuse the visa on the basis that he did not meet the genuine temporary entrant requirement under clause 500.212(a) of the Regulations, the issue before the Tribunal at the time of decision was whether the applicant met the enrolment requirement under cl. 500.211(a) of the Regulations.

3. The Tribunal asked whether the applicant was able to provide evidence of enrolment in a registered course. The applicant stated that he had been unable to gain enrolment in his preferred course of a Bachelor of Nursing but had received an offer from Flinders University to start studying in a program that commenced in Semester 1 of 2018. Credible evidence of a conditional offer was provided to the Tribunal.

4. The Tribunal asked the applicant whether he understood that under the Migration Regulations, enrolment was mandatory and without it he did not seem to meet cl.500.211.

5. The Tribunal said that it could affirm the decision to refuse the visa without considering those factors in Direction 69 that are relevant to being a genuine temporary entrant.

6. The Tribunal asked if the applicant wished say anything else on the matter of his enrolment status, or about not meeting the mandatory enrolment criterion.

7. The applicant said he had finished his Diploma of Nursing which would provide him with credit towards a bachelor degree in nursing. He said that before January he would have been able to get confirmation of enrolment for first semester 2018, but the offer from Flinders University had now lapsed.

8. The applicant further argued that if the decision by the Tribunal “goes back to immigration and they do ask for a COE, I will provide that, the universities consider what type of visa you are on before  they issue a COE”.

9. Since the hearing the applicant has not provided evidence of enrolment in accordance with cl.500.211(a).

10. The Tribunal finds that the enrolment prerequisite is not met by the applicant and concludes that the decision under review should be affirmed.

11. The Tribunal is satisfied that at the time of this decision, the applicant is not enrolled in a full-time registered course of study and that cl.500.211(a) is not met. Accordingly, as the applicant does not claim to meet any of the alternative criteria in cl.500.211, cl.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. 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

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

M. Jackson
Member