SINGH (Migration)

[2018] AATA 1146

SINGH (Migration) [2018] AATA 1146 (5 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GURJANT SINGH

CASE NUMBER:  1619389

DIBP REFERENCE(S):  BCC2016/2847434

MEMBER:Wendy Banfield

DATE:5 April 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 05 April 2018 at 11:11pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Last enrolment had been cancelled – Not currently enrolled in a registered course of study – Criteria for the grant of a Subclass 500 (Student) visa are not met

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 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 17 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 27 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.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the genuine temporary entrant criteria were not met.

   Background

4. The applicant is a citizen of India and is currently 24 years old. He came to Australia on 10 March 2013 with the intention of studying a Bachelor of Information Technology but has not completed the course. Since his arrival in Australia, the applicant has finished Diplomas in Information Technology, Management and Human Resources.

5. The applicant appeared before the Tribunal on 11 January 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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 to meet the criteria 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.

11. The applicant confirmed he came to Australia to study a Bachelor of Information Technology after an English course but he found it to be too difficult. According to the applicant his studies were affected by his mother’s ill health and his father’s expectation that he continue studying and obtain a Bachelor’s degree. He said these issues led to stress and depression. The applicant submitted evidence prior to and at the hearing including enrolment in previous courses, communications with education providers, evidence of consultations with a health professional, a letter of offer to study a Diploma of Marketing and Communications at Australis Institute of Technology and Education and a written submission in support of the application.

12. The Tribunal has considered the evidence submitted including that which addresses the applicant’s history in Australia and the genuine temporary entrant criteria. The written submission from the applicant’s representative states the applicant is a genuine student who has sought deferments and enrolments in order to comply with visa conditions. The submission states that if the applicant is approved [for a student visa] he will continue his studies. However, the Tribunal asked the applicant during the hearing if he was currently enrolled to study and he advised that he was not. He said he still wanted to undertake a Bachelor degree after completing a Diploma but said his last enrolment had been cancelled in August 2017. The applicant has a letter of offer from Australis Institute of Technology and Education dated 8 January 2018 but no Certificate of Enrolment.

13. 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.

14. 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

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

    Wendy Banfield
    Member