1826278 (Migration)

[2020] AATA 3723

1826278 (Migration) [2020] AATA 3723 (30 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1826278

MEMBER:Steven Griffiths

DATE:30 June 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 30 June 2020 at 3:35pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not a genuine temporary entrant – arrival in Australia in 2014 on student visa – left for 15 days during that time – not studying since 2019 – no confirmation of enrolment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2), 360(1)

Migration Regulations 1994, Schedule 2, cl 500.212

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 a decision made by a delegate of the Minister for Home Affairs on 29 August 2018 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 1 August 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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. On 10 March 2020 the Tribunal wrote to the applicants pursuant to s.359(2) of the Act, inviting the applicant to provide all relevant information about the course(s) of study he is undertaking and his entry and stay in Australia as a student in writing. The invitation was sent to the applicant by email [and] advised that, if the information was not provided in writing by 24 March 2020, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The Tribunal notes a response to the s.359(2) of the Act request for information was received on 23 March 2020.

6. On 22 May 2020 the Tribunal wrote to the applicants inviting them to a hearing, pursuant to s.360(1) of the Act, scheduled for 30 June 2020.

7. The Tribunal notes the applicant provided a submission on 29 May 2020.

8. The applicant appeared before the Tribunal on 30 June 2020 to give evidence, respond to questions and present arguments, with the dependent application also providing evidence. The hearing was conducted with the assistance of an interpreter in the Farsi and English languages.  

9. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were raised by the parties on holding a telephone hearing and the Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present argument.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. The Tribunal notes the delegate’s decision was based around compliance with cl.500.212 of the Regulations and if the applicant was a genuine applicant for entry and stay as a student.

13. The Tribunal has read and had regard to information provided by the applicant to the Department. The Tribunal has also read and had regard to the delegate’s decision record, a copy of which was provided to the Tribunal by the primary applicant with his application for review.

14. The Tribunal has read and had regard to information provided by the applicant to the Tribunal on 23 March 2020 as a response to the s.359(2) of the Act request for information, which includes:-

    (a)Completed a course in Business Administration in Iran in May 2012.

    (b)Arrived in Australia [in] July 2014 and has left once for 15 days to visit family.

    (c)Does not have a current confirmation-of-enrolment.

    (d)Completed an English for Academic Purposes course in June 2015.

    (e)Completed a Master of Business Administration in July 2018.

    (f)Completed an Advanced Diploma of Leadership and Management in August 2019.

    (g)Has not worked in Australia.

    (h)Has yearly living expenses of $ 25,440.

    (i)Confirmation that the applicant has concerns about political and civil unrest and Corona Virus in Iran.

    (j)Owns a home and car in Tehran, Iran.

    (k)Letter from 2018 of job offer in Iran.

    (l)Islamic Republic of Iran Military Completion Card.

    (m)[an Australian] College Certificate of Advanced Diploma of Leadership and Management, dated 3/9/19.

15. The Tribunal has read and had regard to the information provided by the applicant to the Tribunal on 29 May 2020, being an academic transcript for his English studied and Certificates for Graduate Certificate of Business Administration, Graduate Diploma of Business Administration and Master of Business Administration.

16. The applicant is [an age]-year-old male citizen of Iran who arrived in Australia [in] July 2014 on a Student 573 Visa granted 27/7/14 and to cease 7/12/16. He was granted a Student 500 Visa on 22/7/17 and to cease 17/3/18. He was granted another Student 500 Visa on 17/3/18 and to cease 6/8/18 and has been on a WA-010 Bridging Visa from 1/8/18.

17. The adult dependent applicant is [an age]-year-old female citizen of Iran who arrived in Australia [in] July 2014 granted 27/7/14 and to cease 7/12/16 and has remained as a dependent to the applicant at all times.

18. The minor dependent applicant was born in Australia on [date] and has been a dependent to the applicant at all times.

19. Tribunal notes the applicant has left Australia once for 15 days since arriving 31/7/14.

20. The Tribunal determines the issue in the case is whether the applicant satisfies the primary criteria contained in cl.500.211 of the Regulations, which states the following must be satisfied:-

    One 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 education 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 Affairs Minister for the grant of the visa;

21. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulation 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. The applicant has made no claim to meet any of the alternative criteria of cl.500.211.

22. The Tribunal notes the student visa applicant lodged by the applicant 1 August 2018 provided details of the applicant seeking to study an Advance Diploma of Leadership and Management only and places weight on this.

23. The Tribunal accepts the documented and oral evidence of the applicant that he completed an Advance Diploma of Leadership and Management in August 2019 and has not studied from that time, and places weight on this.

24. The Tribunal accepts the documented and oral evidence of the applicant that he does not have a current confirmation-of-enrolment and places weight on this.

25. The Tribunal notes the oral evidence of the applicant that with the refusal of his student visa in August 2018 he was stressed and while completing the course he had just started, he was not in a position to determine his future study needs, while determining that in the 10 months from completing the course to the hearing the applicant was required to determine his future study needs and places weight on this.

26. The Tribunal accepts the initial oral evidence of the applicant that “his lawyer was keen for me to start studying again but due to the Corona Virus I did not do anything” and places weight on this.

27. The Tribunal notes the oral evidence of the applicant and dependent applicant that the dependent applicant wishes to remain in Australia to undertake a Masters and PhD, determining that the study wishes of the dependent applicant is not relevant to this hearing of the Tribunal.

28. The Tribunal determines that the applicant has not studied since August 2019 and does not have a current confirmation-of-enrolment for a course of study in place.

29. The Tribunal has not been provided with any information by the applicant that he is currently enrolled in a course of study as required by cl.500.211. As such, the Tribunal cannot be satisfied that the criteria for a grant of a Subclass 500 (Student) visa are met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

30. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Steven Griffiths
    Member