Ali (Migration)

[2023] AATA 3917

Ali (Migration) [2023] AATA 3917 (30 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Saqib Ali

REPRESENTATIVE:  Mr Imran Ali (MARN: 0959879)

CASE NUMBER:  2311512

HOME AFFAIRS REFERENCE(S):          BCC2021/562314

MEMBER:Michael Biviano

DATE AND TIME OF

ORAL DECISION AND REASONS:         30 October 2023 at 10:50 am (VIC time)

DATE OF WRITTEN RECORD:                13 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 13 November 2023 at 4:44pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ceased study during COVID pandemic and not currently enrolled – proposed new course but no enrolment, then intention to complete original course but no evidence of communication with provider – mental health but no supporting evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.111, 500.211(a)

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 July 2023 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 30 October 2023 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. The applicant applied for the visa on 19 April 2021, at the time of the application (Class TU) contained two subclasses, (Subclass 500) Student, (Subclass 590) Student Guardian. The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for (Subclass 590) Student Guardian visa. The delegate in this case refused to grant the visa on the basis the applicant did not satisfy the requirement of clause 500.211 of Schedule 2 to the Migration Regulations 1994, (the Regulations), because the delegate was not satisfied that the applicant was enrolled in a registered course of study. 

4. The applicant appeared before the Tribunal on 30 October 2023 to give evidence and present arguments.  The applicant has been assisted in the review by his agent. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant is enrolled in a registered course of study that meets the requirements of clause 500.211(a).

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. The issue in the present case is whether the applicant is enrolled in a full-time registered course, and therefore a course of study, as required by cl 500.211(a).

   Enrolment (cl 500.211)

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 reg 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 (ESOS Act), to provide the course to overseas students.

10. The applicant in this particular case is a 29-year-old Pakistan national who first came to this country on 9 March 2019, on a student visa for the purposes of undertaking study in this country.  The applicant at the hearing confirmed that he had obtained a student visa for the purpose of completing a Master of Information Technology at Charles Sturt University, studies which he commenced in 2019.  He gave evidence that that course was for a two-year duration and was to conclude at around the time of his visa expiring in early 2021.

11. The applicant gave evidence that he completed nine units of the master’s degree but did not complete the final unit.  He claims that his studies were interrupted by reason of the COVID-19 pandemic, which resulted in his circumstances becoming less favourable and adversely impacted his ability to complete his studies in that course.  The applicant gave evidence that he ceased studies around July 2020 and has not, since that time, undertaken any further studies. 

12. The applicant candidly in evidence confirmed that he has not been enrolled since his enrolment in the Master of Information Technology at Charles Sturt University.  He has not undertaken any further studies since July 2020, which is for a period of three years and three months. 

13. The decision of the delegate of the Department of Home Affairs, which was made on 13 July 2023, confirmed that the applicant had proposed to undertake a Master of Business Administration at UBSS.  Despite requests being made by the delegate for the provision of additional information and documentation about the enrolment, the applicant did not provide that documentation.  The applicant in evidence confirmed that he never took up any proposed studies in the Master of Business Administration, and at all times it has been his intention to complete the Master of Information Technology. 

14. The applicant was asked as to why he had not re-enrolled and why he had not completed the Master of Information Technology.  The applicant in evidence claimed that he has been in discussions with his agent recently, with a view of taking up an enrolment in the Master of Information Technology to complete the final subject at Charles Sturt University. 

15. He claims that he has not been able to undertake that study over the previous three years due to his mental state,  which he claims could at best be described as someone who has or had a high degree of lethargy and inability to undertake action.  No supporting evidence such as medical records, medical reports or any other documents were provided to support the applicant’s claims, that by reason of his medical condition, he has been unable to obtain an enrolment and complete his studies. 

16. The applicant in evidence requested the Tribunal afford him an opportunity of two to three weeks so that he can arrange to provide to the Tribunal enrolment documents, which he claimed he was confident he would be able to obtain from Charles Sturt University to undertake or complete his studies in the Master of Information Technology commencing in March 2024.  Again, the applicant has not provided any supporting documentation to indicate what level of discussions or communications have taken place.  There is nothing that independently verifies that the applicant will be able to obtain that enrolment, such as a letter of offer or email communications. 

17. It is important to note that by March next year, some five years will have progressed since the applicant commenced those studies, and the Tribunal has serious concerns that the applicant will be unable to obtain that enrolment, in light of the gap in studies. 

18. Essentially, the applicant has sought or made an application to adjourn this hearing to enable him to get enrolled.  The difficulty for the applicant is that the Tribunal has afforded the applicant sufficient opportunity to obtain that enrolment. 

19. The applicant was informed by reason of the decision on 13 July 2023, that his visa application was being refused by reason that he was not enrolled in a registered course of study. 

20. Furthermore, on the provision of the invitation to attend this hearing on 2 October 2023, the tribunal wrote to the applicant, and under the heading ‘Things to do before the hearing’ stated as follows:

    Please provide all documents you intend to rely on to support your case by 23 October 2023.  The decision made by the department should set out reasons for the decision, and you should have regard to these, and any changes in your circumstances in providing documents and preparing for the hearing.

21. Further it states as follows:

    In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible.

    1. A copy of your current confirmation of enrolment (COE), or other document/s that show that you are currently enrolled in a course of study as defined in cl 500.111 and as required by clause 500.211(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.

22. The applicant did not comply with that request.  The Tribunal requested that the applicant explain as to why he had been unable, from being given notice, to obtain the enrolment.  The applicant claimed in evidence he thought the process to obtain the enrolment would be relevantly simple, but claimed due to his medical state that he could not seek that enrolment.  The Tribunal is not satisfied that is the case and there is no corroborating evidence that suggests that he was unable to obtain an enrolment due to his medical state.

23. The applicant has been corresponding with his agent, and there would be no reason why the applicant could not simply arrange to obtain a COE confirmation of enrolment between at least the date of the letter on 2 October 2023 and today’s date, being the day of the hearing on 30 October 2023. 

24. In those circumstances, the Tribunal refuses the application to adjourn the hearing to provide further documents and does so because:-

    a.the Tribunal is not satisfied that the applicant will be able to provide any further documentation that supports his application. 

    b.the applicant has had ample opportunity to obtain enrolment.

    c.the enrolment and the provision of a COE is a cornerstone of obtaining a student visa, which was known to the applicant. 

25. In light of the above matters, the Tribunal refuses the applicant’s application to adjourn the hearing to enable further time to provide documentation. 

26. The applicant in evidence confirmed he is not enrolled in a registered course of study and does not have a COE.  He also confirmed that he is currently not undertaking any study at this time. 

27. In light of those circumstances, and based on the applicant’s evidence, the Tribunal is  satisfied that the applicant is not enrolled in a registered course of study at the time of this hearing.  The applicant has not provided to the Tribunal, either on the day of the hearing or previously, any documentation which confirms that he is currently enrolled in a registered course of study. 

28. In all those circumstances, the Tribunal is satisfied that at the time of this decision, the applicant is not enrolled in a registered course of study and therefore, clause 500.211 is not met.

29. 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 have met the criteria for (Subclass 590) Student Guardian visa.

30. Accordingly, the decision under review must be affirmed, and the decision of this Tribunal is that it affirms the decision not to grant the applicant a Student Temporary (Class TU) visa.  The decision of the Tribunal is that it affirms the decision under review.

    DECISION

31. The Tribunal affirms the decision under review.

    Michael Biviano
    Member