Supreet Singh (Migration)

[2019] AATA 3470

Supreet Singh (Migration) [2019] AATA 3470 (1 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Supreet Singh

CASE NUMBER:  1807311

HOME AFFAIRS REFERENCE(S):          BCC2017/4925213

MEMBER:Mark Bishop

DATE:1 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 01 July 2019 at 9:57am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 – no evidence applicant enrolled in registered course – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 362B, 379A
Migration Regulations 1994 (Cth), cl 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 Home Affairs on 27 February 2018 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 22 December 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).

4. The applicant provided a copy of the decision record to the Tribunal.

5. On 11 June 2019 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 27 June 2019. The invitation stated that if he did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

6. No response to the hearing invitation was received.  The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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 proof of enrolment in a course of study.

   Enrolment (cl.500.211)

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 first primary criteria is contained in clause 500.211, which requires that at the time of decision the applicant is enrolled in a course of study:

    500.211One of the following applies:

    (a)   the applicant is enrolled in a course of study;

    (b)   if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

    (c)   if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;

    (d)   if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.

12. On 28 May 2019 the applicant provided a written response to a request for information made under s.359(2) of the Act. In that written response the applicant advised the Tribunal he did not have a current Confirmation of Enrolment (COE) in a course of study.

13. On 11 June 2019 a written invitation to attend the hearing today was sent to the applicant via his migration agent.  In that invitation he was requested to provide a copy of his current COE to the Tribunal at least 7 days before the scheduled date of the hearing. A copy of the Certificate was not provided. 

14. In his written evidence provided pursuant to s.359(2) of the Act the applicant advised he was last enrolled in a Bachelor of Business and never started this course of study. He advised the Tribunal in writing he had not started any course since 15 July 2017.  He further advised the Tribunal in writing he had not started or not completed any course of study since 6 February 2015.

15. Accordingly, there is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore the current enrolment pre-requisite for all student visa sub-classes is not met.

16. Furthermore, there is no evidence that the applicant meets the criteria for either of the remaining subclasses of Class TU. The applicant is neither supported by the relevant Minister nor has she made the visa application on the basis of being a student guardian.

17. The Tribunal has carefully considered the delegate’s decision record dated 8 August 2017, a copy of which was provided to the Tribunal by the review applicant with the application for review.

18. Crucially however, the Tribunal does not have before it recent evidence that the review applicant is presently enrolled in a course of study as required by cl.500.211(a). It follows that the Tribunal is not satisfied that the review applicant is presently enrolled in a course of study as required by cl.500.211(a).

19. 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.

    Mark Bishop

21. Member