Asad (Migration)

[2023] AATA 2817

Asad (Migration) [2023] AATA 2817 (18 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nosherwan Asad

CASE NUMBER:  2203813

HOME AFFAIRS REFERENCE(S):          BCC2020/2191449

MEMBER:Frank Russo

DATE OF ORAL DECISION:  18 August 2023

DATE OF WRITTEN STATEMENT:         18 August 2023

PLACE OF DECISION:  Sydney

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

Statement made on 18 August 2023 at 5:05pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 600 (Student) – genuine temporary entrant – no current enrolment – change of course, non-payment of fees, cancellation of enrolment and enrolment gap – unable to obtain credits for units completed and enrol for new course without visa – evidence of recent offer of enrolment not provided – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2), 359AA

Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.111, 500.211(a), 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 Home Affairs on 23 February 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 August 2020. 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.500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant applied to the Tribunal on 16 March 2022 for a review of the decision to refuse the grant of the Student visa.

5. The Tribunal gave its decision on the review at the conclusion of the hearing held on 18 August 2023. The following are the reasons for that decision.

6. The applicant appeared before the Tribunal by telephone on 18 August 2023 to give evidence and present arguments.

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.

9. As noted above, while the issue before the delegate was whether the applicant is a genuine applicant for entry and stay as a student, given the information about the applicant’s enrolment, 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).

10. In addition to the application for review, the applicant provided the Tribunal with copies of the delegate’s decision and notice of the decision from the Department. On 18 May 2023 the applicant provided the Tribunal with a completed ‘Request for Student Visa Information form’ in response to a s.359(2) invitation to provide information. The applicant also provided a response to the hearing invitation.

11. The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department file and has had regard to the documents on that file.

    Enrolment (cl 500.211)

12. 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.

13. ‘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 (Cth), to provide the course to overseas students.

14. At the hearing, the applicant gave evidence that he first arrived in Australia in 2017, holding a Student visa. He gave evidence that he first arrived to study a Bachelor of Business at University of Technology, Sydney (UTS), which he did for approximately six months before he ‘switched’ to a Bachelor of Information technology. He stated that he had trouble paying his course fees, following which his confirmation of enrolment (CoE) was cancelled. He stated that he attempted to obtain another CoE but did not get issued with one, following which the Department refused his application for a second Student visa. The applicant confirmed that at the time of the hearing, he did not have a current CoE for a course of study.

15. The Tribunal explained to the applicant that, in order to be granted a Student visa, it is a requirement that he be enrolled in a registered course of study, and that arising from the evidence he had given, he is not enrolled in a course of study and therefore the enrolment requirement has become the determinative issue in the application for review. The applicant confirmed that he understood this.

16. When asked whether he had taken any steps to obtain a CoE, the applicant stated that in 2021 when his visa was cancelled, he applied to some colleges, but they told him they could not issue him with a CoE because of his visa status.

17. The Tribunal used the procedure set out in s.359AA of the Act to put to the applicant information from his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal explained that the information contained in this record is consistent with the evidence he had given about his enrolment history, although it contains further details about dates, which may be relevant. The Tribunal put the following particulars of information to the applicant:

    a.He had two enrolments in a Bachelor of Business from 24 July 2017 to 30 June 2020, the most recent of which was cancelled on 27 March 2018 because ‘Student Notifies Cessation of Studies’; and

    b.He was enrolled in the Bachelor of Information Technology and Systems from 5 March 2018 to 31 December 2020, which was cancelled on 4 January 2021 for non-payment of fees.

18. The Tribunal put to the applicant that this information may be relevant to the issue before the Tribunal, because it may indicate that he does not have a current enrolment in a registered course of study and that his last enrolment was cancelled in January 2021, approximately two-and-a-half years ago.

19. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

20. The applicant confirmed that he understood the nature of the information and wished to comment on the PRISMS enrolment record at the hearing. The applicant confirmed that his most recent CoE was cancelled in 2021 because of the non-payment of fees. He stated that he tried to obtain another CoE from other institutions, but it was important for him to obtain credits for the units he had completed because he had studied at UTS for two years. He stated that other institutions would not give him course credits because of his visa status. He stated that he spent a year going back and forth with his agent, trying to get a new CoE. He also tried to get another CoE after the Department refused his Student visa application. The applicant stated that he obtained a letter of offer from a college, but the college then told him they could not issue him with a CoE.

21. When asked whether he has a current letter of offer, the applicant stated that he had one from APIC (Asia Pacific International College), but then clarified that this had been a few months ago. He stated that his agent had a copy of the letter of offer. When asked whether it had been provided to the Tribunal, the applicant stated that he thinks his agent submitted it. The Tribunal noted that the applicant had responded to a s.359(2) invitation to provide information in May 2023 but indicated at that time that he had no current enrolment. No other attachments were provided with the s.359(2) response. The applicant also responded to the hearing invitation but did not provide any evidence of enrolment or a letter of offer. The Tribunal put to the applicant that there was nothing on the Tribunal file to indicate that he has a current letter of offer, and put to him that he had been invited by the Tribunal twice in writing in 2023 to provide copies of a current CoE, letter of offer or other evidence to indicate that he is currently enrolled.

22. When questioned whether there were any reasons why the Tribunal should not proceed to make a decision, the applicant indicated that he didn’t have any. He indicated that he had no further comments.

23. While the applicant did not request an extension of time or postponement of the hearing, the Tribunal does not consider the circumstances to be appropriate for the grant of an extension of time or adjournment and considered it reasonable to proceed to a decision in this matter. In particular, the Tribunal notes that the applicant has not held a CoE since January 2021, a period of over two-and-a-half years. The Tribunal does not find the applicant’s stated reasons for not having a current CoE or letter of offer to be convincing or reasonable in light of an enrolment gap of such length. The applicant has not provided the Tribunal with any supporting evidence of attempts to obtain an enrolment, such as enquiries to education providers. The Tribunal also considers the applicant has had sufficient time to obtain a current CoE and was invited to provide evidence of a current enrolment on two occasions in 2023.

24. In summary, the applicant has not provided any evidence of a current CoE, nor of any current letters of offer, and on his own evidence, he is not currently enrolled in a course of study. On the evidence before the Tribunal, including the evidence from his PRISMS record, there is no evidence that the applicant is now enrolled in or has a current offer of enrolment in any applicable course of study.

25. 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.

26. 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

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

    Frank Russo
    Member