1710148 (Migration)

[2018] AATA 3136

1710148 (Migration) [2018] AATA 3136 (25 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1710148

MEMBER:Gabrielle Cullen

DATE:25 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 25 June 2018 at 3:53pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa  – Health criteria in Public Interest Criterion (‘PIC’) 4005 not met – Not enrolled – Decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.111, 500.211, 500.217, 500.218, Schedule 4

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 4 May 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 20 January 2017. The delegate refused to grant the visas on the basis that the first named applicant (now referred to as the applicant) did not satisfy cl.500.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

3. The applicants appeared before the Tribunal on 21 March 2018 to give evidence and present arguments.

4. The Tribunal raised with the first named applicant (the applicant) that an issue before it is whether he meets cl.500.211 in that he is enrolled in a course of study. The Tribunal raised with the applicants via the process outlined in s.359AA that PRISMS records indicate the applicant is not currently enrolled in a course of study. It raised with him that PRISMS records indicate he has completed [a course]. The applicant confirmed he is not enrolled and had successfully completed this course.

5. The Tribunal also asked him questions as to his health problems, former MOC opinion and requirement to meet PIC 4005. He referred to an operation he will undergo in April which may improve his condition. After the hearing the Tribunal was advised the operation was rescheduled to 23 May 2018. On 13 June 2018 the Tribunal invited the applicants by letter to provide any further information prior to 20 June 2018, as after that time a decision will be made on his application.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue before the delegate was whether the applicant met the criterion in cl.500.217. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

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.

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. Information from the Department’s electronic (PRISMS) records indicates that the applicant is not currently enrolled in a course of study and study in the Master of IT ceased in December 2017. He has not provided any evidence that he is currently enrolled in any course of study. The applicant confirmed he is not enrolled in a course of study at hearing. He also provided, prior to the hearing, a letter from [a specified university] indicating he had successfully completed his [course].

12. On the evidence before it the Tribunal does not accept the applicant is at the time of this decision enrolled in a course of study. 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.

13. 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

14. The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

    Gabrielle Cullen
    Member