Grewal (Migration) [2021] AATA 2973 (8 June 2021)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	Mr Gurjot Singh Grewal
CASE NUMBER:	2016904
DIBP REFERENCE(S):	BCC2017/1389882 
MEMBER:	D Triaca
DATE AND TIME OF 
ORAL DECISION AND REASONS:	8 June 2021 at 9:37 am (VIC time)
DATE OF WRITTEN RECORD:	23 July 2021
PLACE OF DECISION:	Melbourne
DECISION:	The Tribunal affirms the decision under review.

Statement made on 23 July 2021 at 9:01am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – Federal Circuit Court remittal – genuine student – genuine temporary entrant – lawful residence in Australia – enrolment in a course of study – applicant changed to vocational course – decision under review affirmed	

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cls 500.111, 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 Immigration on 18 October 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).
2.  	At the hearing on 8 June 2021, 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.  	This is a decision of the tribunal it is 9.24 am on 8 June 2021.  The applicant is a 29-year-old citizen of India who applied for a visa on 15 April 2017.  At the time of the application Class TU contained two subclauses, subclause 500 and subclause 590.  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.  The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of schedule 2 of the Migration Regulations 1994 because the applicant was not considered to be a genuine applicant for entry and stay as a student.  A copy of the delegate’s decision was provided to the tribunal.
4.  	The applicant previously came before the tribunal in 2019 in matter number 1726978, having applied to the tribunal for a review of the delegate’s decision in November 2017.  The tribunal at that time wrote to the applicant on 25 February 2019 pursuant to section 359(2) of the Act inviting them to provide information in relation to the courses of study the applicant was undertaking in their entry and stay in Australia as a student.  The invitation was sent to the last address provided by the applicant requiring the applicant to provide information by 12 March 2019.  The applicant did not respond to the tribunal’s invitation.  The tribunal proceeded to make the decision in relation to the application on 21 May of 2019 and affirmed the delegate’s decision in matter number 1726978.  
5.  	The applicant then appealed to the Federal Circuit Court and the matter was dealt with in that Court on 16 November 2020. The Court made orders quashing the decision of the tribunal and requiring the tribunal to determine the application to review the decision of the delegate of the first respondent dated 18 October 2017 according to law.  The first respondent on that occasion, being the Minister for Home Affairs, accepted that the application must be allowed on the basis of the decision of the tribunal was affected by jurisdictional error as it made a finding which was not open to it on the evidence before it.  
6.  	In the tribunal’s decision in matter number 1726978, the tribunal found that the applicant was present in Australia as an ‘unlawful non-citizen’ from 23 May 2017, when, in fact, his previous Student visa expired until 15 August 2017. The tribunal concluded that taken as a whole, the applicant’s conduct demonstrated its lack of intention to adhere to an abide by the conditions of his visa.  The tribunal’s finding that the applicant had been present in Australia unlawfully was factually wrong and was not open to the tribunal on the material before it.  The evidence before the tribunal showed the applicant’s visa application was lodged on 15 April 2017 before the expiry of his previously held visa, and that he was then granted a Bridging visa.  This matter was remitted to the tribunal on 16 November 2020.
7.  	I have reviewed the material and I accept that this is the correct position and I accept that the applicant has not been in Australia as an unlawful non-citizen for that period of time between May and August 2017 or indeed any period of time.  Where the applicant was not a student on a Student visa he was lawfully in Australia on a Bridging visa.  Accordingly, I place no weight on that matter against the applicant.  
8.  	The applicant has come before the tribunal today on 8 June 2021 and attended by telephone.  He has given evidence and presented these arguments.  For the following reasons I have concluded that the decision under review should be affirmed.
9.  	The criteria for the granting of a Subclass 500 Student visa set out in Part 500 of the Regulations, the primary criteria is clause 500.211 to clause 500.218 must be satisfied.  The enrolment criteria set out in clause 500.211 relevantly requires that at the time of the decision the applicant must be enrolled in a course of study, that is clause 500.211(a).  The applicant does not claim to meet any of the alternative criteria in clause 500.211.  Course of study is relevantly defined in clause 500.111 of the regulations as a full-time registered course.  Registered course is defined in regulations as a course of education or training provided by an Institution, Body, or person, that is registered under division 3 of the Education Services for Overseas Students Act for 2000, that provides a course for overseas students.  
10.  	Producing evidence in a current enrolment is a critical first step toward obtaining a Student visa, such evidence shows that the applicant has prior to the tribunal making its decision entered into a legally binding contract with a registered course provider.  Enrolment continues to be of legal significance once the Student visa is assessed.  All Student visas are subject to a condition that the visa holder remains enrolled in a registered course of the study, that the condition operates on a continuing basis every day the visa remains valid.  If a Student visa is issued to an applicant who is not enrolled in a course of study, the visa will be breached as soon as it is granted.  The tribunal must therefore be presented with evidence that shows that the applicant is currently enrolled in a registered course of study.  Absence of such evidence a Student visa cannot sensibly be granted.  Indeed, in any case for a Student visa, consideration of whether all other primary criteria are met as contained in clauses 500.212 to 218, is premised on the enrolment criteria first being satisfied.
11.  	If the clause 500.211 is not met, there is no administrative utility in the tribunal proceeding to consider any further primary criteria. 
12.  	In this case, the tribunal cannot be satisfied the applicant is currently enrolled in a registered course of study.  The applicant appeared before the tribunal today, he has given evidence to the effect that he is not currently enrolled in a registered course of study, he has not been enrolled in any registered study in Australia since about 2018.  His evidence is that he has previously completed a Certificate III in Commercial Cookery in about 2016.  Prior to that he enrolled in a Master of Business Administration. He completed one semester of this course in about 2015, but he did not complete the second semester of that course, and he then changed to cookery.  He says that in 2017 he completed part of a Certificate IV in Commercial Cookery, but he has not undertaken any formal study since 2018.  In these circumstances, I find that the applicant is not enrolled in a course of study and he has not been enrolled in any course of study for a significant period of time.  
13.  	I consider that the applicant having been in Australia since 2015 and has had every opportunity to take advice or gain an understanding of the requirements of a student visa, and I consider he has had more than a reasonable period of time in which to be enrolled.  He says that he has not enrolled in a course of study in part because he was concerned about the outcome of this application and he did not want to pay for an enrolment only to have the application be refused and lose that money.  He also says he has been confused about the requirements.  In all the circumstances, I consider that he has had sufficient opportunity to inform himself of the requirements of the Student visa holder and I do not consider it is reasonable for him to have been in Australia since 2018 without undertaking any form of study.  

14.  	Now, for the purposes of determining whether the criteria contained in clause 500.211 are satisfied, cogent evidence of a current enrolment must be presented to the tribunal before it can make a finding that the applicant is currently enrolled in a registered course of study.  There is presently no evidence before the tribunal, therefore the tribunal is not satisfied that at the time of this decision the application is enrolled in a course of study, and accordingly clause 500.211 is not met.  Given these findings, the tribunal finds that the criteria for the grant of a Student Subclass 500 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.  The tribunal affirms the decision not to grant the applicant a Student visa.
decision 
15.  	The Tribunal affirms the decision under review.

Dominic Triaca
Member