Abbas (Migration)

[2019] AATA 2200

Abbas (Migration) [2019] AATA 2200 (7 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Qammar Abbas

CASE NUMBER:  1714887

HOME AFFAIRS REFERENCE(S):           BCC2017/222698

MEMBER:Adrienne Millbank

DATE:7 March 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 07 March 2019 at 12:55pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – enrolled in a course of study – not enrolled in an approved course at the time of decision – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 500.111, 500.211, 500.214

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 Immigration and Border Protection on 28 June 2017 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 17 January 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.500.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The Delegate was not satisfied that the applicant had provided sufficient evidence of financial capacity as specified by legislative instrument.

4. The applicant appeared before the Tribunal on 29 January 2019 to give evidence and present arguments.

5. The applicant was assisted in relation to the review by their registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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. While the issue before the Delegate was whether the applicant had sufficient evidence of financial capacity, the issue before the Tribunal is whether, at the time of decision, the applicant meets the enrolment requirements for a Student visa.

8. 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.

9. ‘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.

10. In its letter of hearing invitation of 12 December 2018, the Tribunal asked the applicant to provide at least seven days before the hearing date, a copy of his current Confirmation of Enrolment (CoE) or other document/s showing that he is currently enrolled in a full-time registered course of study as defined in cl.500.111 of Schedule 2 to the Regulations. Such evidence was not provided.

11. At hearing the applicant stated that he had not been able to provide a CoE because his course provider was still processing his application, and that the processing was taking time because it involved credit transfers from a number of institutions where he had previously studied. He provided evidence in the form of email exchanges that he had been seeking to enrol in a course of study since early January 2019.

12. At hearing the applicant sought, through his representative, and was granted an extension of time of 14 days to obtain evidence of enrolment. In an emailed letter dated 13 February 2019 the applicant’s representative requested a further extension of time, because the applicant ‘has been unable to obtain a CoE, despite his numerous requests to the education provider’.  Copies of the applicant’s requests were attached.  The Tribunal granted a further extension of 14 days, to 4 March 2019. The applicant was advised, through his representative, that if the Tribunal did not receive the information by 4 March 2019, the Tribunal may make a decision on the review without taking any further action to obtain the information.

13. On 4 March 2019 the applicant’s representative emailed the Tribunal stating that despite ‘repeated numerous attempts’ the applicant had been unable to obtain a CoE. The Tribunal does not accept the representative’s claim that this was due to the applicant’s enrolment request being held up in a queue of enrolment requests, the result of the education provider’s processing times and therefore beyond the control of the applicant. The Tribunal notes from the email exchanges provided by the applicant that the provider requested on several occasions additional information from the applicant, including: when his previous CoE was cancelled; an explanation of what he had been doing since July 2018, the last time he held an active CoE; and the outcome of the Tribunal hearing.

14. Despite two extensions of time each of 14 days, the applicant has not provided evidence that he is enrolled in any course of study. On 4 March 2019 he confirmed in writing, through his representative, that he has not been able to obtain an enrolment.

15. 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.

16. 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

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

    Adrienne Millbank
    Member