ARSHAD (Migration)

[2019] AATA 5359

ARSHAD (Migration) [2019] AATA 5359 (23 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MUHAMMAD JUNAID ARSHAD

CASE NUMBER:  1712463

HOME AFFAIRS REFERENCE(S):         BCC2016/4166516

MEMBER:Wendy Banfield

DATE:23 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 23 July 2019 at 10:22am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Diploma of Leadership and Management – enrolment cancelled for non-commencement of studies – not enrolled in registered course – did not respond to Tribunal’s invitation to respond to adverse information – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), ss 65, 359A
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 29 May 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 9 December 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.

   Background

3. The applicant is a citizen of Pakistan and is currently 23 years old. He came to Australia in 2014 undertake studies in Business. The applicant has been enrolled in Diploma and Bachelor courses in Business, Accounting and Leadership and Management but those enrolments had been cancelled. At the time of the hearing, the applicant was enrolled in a Diploma of Leadership and Management which was later cancelled for non-commencement of studies.

4. The delegate in this case refused to grant the visa 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) because it was determined the genuine temporary entrant criteria had not been met.

5. The applicant appeared before the Tribunal on 15 October 2018 to give evidence and present arguments.

6. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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. 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 an approved course of study as required for the grant of a Student Visa.

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. On 8 October 2018 the applicant was invited to attend a hearing scheduled for15 October 2018. The invitation asked the applicant to provide a copy of a current Confirmation of Enrolment (COE) or other documents that show he is currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994. The applicant was advised that a COE is required for the grant of a student visa. At the Tribunal hearing on 15 October 2018 the applicant was advised that in order to be eligible for a student visa, he must be enrolled in an approved course of study at the time of decision. At the time of the hearing, the applicant was enrolled in a course of study.

12. After the hearing but before the decision was made in the applicant’s case, the Tribunal checked the applicant’s enrolment status and found that his previous enrolment in a course of study had been cancelled. Therefore, on 8 July 2019 the Tribunal wrote to the applicant inviting him to comment on or respond to the information.

    359A letter

13. The Tribunal advised the applicant as follows:

    According to the Provider Registration and International Student Management System (PRISMS) records available to the Tribunal, you are not currently enrolled in a course of study. At the time of the hearing in your case you were approved to study a Diploma of Leadership and Management however, according to PRISMS your enrolment was cancelled due to non-commencement of studies.

    This information is relevant to the review because the Migration Regulations state that at the time of decision, to be eligible for the grant of a student visa an applicant must be enrolled in a full-time registered course of study. PRISMS indicate you are not currently enrolled and have not completed any courses of study in Australia.

    If the Tribunal relies on the information indicating you are not enrolled to study in making a decision, it may lead to the decision under review being affirmed.

14. The applicant was advised he was required to respond by 22 July 2019 but if he was unable to respond by that date, the applicant could request an extension of time to provide his comments or response. The letter advised that any request for an extension of time must be received before the due date. The applicant did not respond to the request for comment or ask for an extension of time in which to comment or respond, prior to 22 July 2019 as required.

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.

    Wendy Banfield
    Member