ABBAS (Migration)

[2018] AATA 3114

ABBAS (Migration) [2018] AATA 3114 (26 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RAZA ABBAS

CASE NUMBER:  1708556

HOME AFFAIRS REFERENCE(S):           BBC2016/3763501

MEMBER:Gabrielle Cullen

DATE:26 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 26 July 2018 at 12:10pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Course enrolment – Enrolment ceased – Change in area of study – No current enrolment – Decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 1.03 Schedule 2 cls 500.111, 500.211, 500.212

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 30 March 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 10 November 2016. 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 decided to refuse to grant the visa on 30 March 2017. The delegate decided to refuse to grant the visas because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student.

4. On 19 April 2017 the applicant lodged an appeal to the Tribunal and attached the decision of the Department.

5. On 20 June 2018 the Tribunal wrote to the applicant and invited him to attend a hearing on 26 July 2018. The letter, among other matters, requested the applicant provide a current Certificate of Enrolment (COE) or other documents that show he is currently enrolled in a course of study as defined in cl.500.211. It noted that this is required for the grant of a student visa. The letter also indicated that the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

6. To the Tribunal he provided certificates of completion of past courses, a COE dated 2 November 2017 indicating he is studying a Diploma of Travel and Tourism from 16 October 2017 to 7 April 2019, results of an IELTS test, results of his intermediate examination from 2009 and a statement of purpose.

7. The applicant appeared before the Tribunal on 26 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from is uncle, Mr Mohammad Naseem.

8. The Tribunal raised with the applicant via the process outlined in s.359AA that PRISMS records indicates he ceased enrolment in the Diploma of Travel and Tourism Management on 15 November 2017 and note he was then enrolled in a Diploma of Leadership and Management but that enrolment ceased on 17 February 2018 when he notified the education provider of cessation of his studies. It raised with him that the information indicates that he has not been enrolled since that time. It raised with him the relevance of this matter and that it may lead it to find he does not meet the enrolment criteria and that it may lead it to find he is not entitled to the grant of a student visa. The applicant then confirmed he was not enrolled.

9. The Tribunal also asked him questions as to the genuine temporary entrant requirement. He referred to now being interested in hospitality and being a chef, specifically an interest with pastries and involved in tourism. It asked him questions as to his study, including subjects studied in the Diploma of Travel and Tourism Management in 2017 and indicated he had only attended for a short period. The Tribunal raised its concerns in this regard. In particular it noted his lack of enrolment and current study, and his length of time in Australia.

10. The witness gave evidence as to the applicant’s change in area of study from Business/Accounting to Hospitality.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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. The issue before the delegate was whether the applicant met the criterion in cl.500.212. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

13. 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.

14. ‘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.

15. Information from the Department’s electronic (PRISMS) records indicates that the applicant is not currently enrolled in a course of study and he has not provided any current evidence that he is currently enrolled in any course of study. The COE he has provided is dated November 2017 and the evidence indicates enrolment in this course has been cancelled. The applicant also confirmed he is not currently enrolled in a registered course. 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.

16. 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.

17. 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

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

    Gabrielle Cullen
    Member