Singh (Migration)

[2018] AATA 28

Singh (Migration) [2018] AATA 28 (11 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arvinder Singh

CASE NUMBER:  1619203

DIBP REFERENCE(S):  BCC2016/2879907

MEMBER:Wendy Banfield

DATE:11 January 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 11 January 2018 at 5:22pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) –Not enrolled in a course of study – Not a genuine temporary entrant – Applicant did not attend Tribunal hearing

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65
Migration Regulations 1994, r1.03 Schedule 2 cls 500.111, 500.211 – 500.218,

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 25 October 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 30 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 applicant had breached his visa conditions and did not meet the criteria of a genuine temporary entrant.

   Background

4. The applicant is a citizen of India and is 27 years old. He first came to Australia on 13 October 2013 as the holder of a Subclass 573 Student Visa. Since his arrival the applicant has been enrolled in and completed a Diploma of Business but has not maintained enrolment in the IT subjects he originally intended to study.

5. On 8 December 2017 the applicant was invited to attend a hearing on 11 January 2018 to give evidence and present arguments in his case. There was no response to the invitation. SMS hearing reminders were sent to the applicant’s phone on 4 and 10 January 2018, however; the SMS message sent on 4 January failed to deliver. The applicant did not respond and did not attend the hearing at the time and place scheduled.

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 a 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.

11. The Tribunal has not received any evidence to demonstrate that the visa applicant is currently enrolled in a course of study.  In the invitation to attend a hearing dated 8 December 2017, the applicant was asked to provide a copy of a current Certificate of Enrolment (COE) as required for the grant of a student visa. However, no COE has been provided. 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.

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

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

    Wendy Banfield
    Member