Varinder Singh (Migration)

[2024] AATA 2208

Varinder Singh (Migration) [2024] AATA 2208 (18 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Varinder Singh

REPRESENTATIVE:  Mr Shamsher Kainth (MARN: 2117656)

CASE NUMBER:  2306281

HOME AFFAIRS REFERENCE(S):          BCC2023/1273128

MEMBER:Peter Booth

DATE AND TIME OF

ORAL DECISION AND REASONS:         18 April 2024 at 9:34 am (VIC time)

DATE OF WRITTEN RECORD:                29 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 29 May 2024 at 10:41am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant is not currently enrolled – decision under review affirmed    

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 April 2023 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on the  18 April 2024 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. I will make an oral determination in this matter now.  This is an oral decision in case number 2306181 in the matter of Singh. 

4. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 April 2023 to refuse to grant you a Student (Temporary) (Class TU) visa pursuant to section 65 of the Migration Act.

5. You applied for the visa on 21 February 2023 to undertake study in Australia.  At the time the visa application was lodged, the student visa contained two subclasses, subclass 500 and subclass 590. The applicant applied for the visa to undertake study in Australia and does not claim to meet the subclass 590 criteria. 

6. The delegate in your case refused to grant the visa on the basis that you did not satisfy the requirements of 500.212 of schedule 2 to the regulations because the delegate was not satisfied that you were a genuine student who intends genuinely to stay in Australia temporarily. 

7. You appeared before the tribunal today to give evidence and present arguments. 

8. The hearing was conducted with the assistance of an interpreter in your own native language and in the English language. 

9. While the issue before the delegate was whether you were a genuine temporary entrant, the issue now is whether, at the time of this decision, you meet the enrolment requirements for a student visa. 

10. The criteria for a subclass 500 student visa was set out in part 500 of schedule 2 to the regulations.  The primary criterion in clause 500.211 is whether you are enrolled in a course of study as required for the grant of a student visa. 

11. ‘Course of study’ is defined in clause 500.211 of the regulations as ‘A full-time registered course.’ ‘Registered course’ is defined in regulation 1.03 as, ‘A course of education or training provided by an institution, body or person that is registered pursuant to division 3 of part 2 of the Education Services for Overseas Students Act to provide the course to overseas students.’

12. In your evidence today, you have admitted that you are not enrolled in any course of study in Australia and that both of your enrolments have been cancelled.  One was cancelled on 21 February 2024, and the other on 4 May 2023.  You have agreed that you are not enrolled in any course of study today. 

13. Accordingly, there is no evidence before me that you are now enrolled in any course of study, therefore, the tribunal finds that the criteria for the grant of a (Subclass 500) Student visa are not met. 

14. For the reasons the tribunal has concluded the decision under review should be affirmed. 

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

16. This decision is made at 9.34 am on 18 April 2024. 

    DECISION

17. The Tribunal affirms the decision under review.

    Peter Booth
    Member