Aslam (Migration)

[2019] AATA 477

Aslam (Migration) [2019] AATA 477 (8 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aqib Aslam

CASE NUMBER:  1724188

HOME AFFAIRS REFERENCE(S):           BCC2017/2733874

MEMBER:Stephen Conwell

DATE:8 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 08 February 2019 at 3:31pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – whether the applicant has financial capacity – no evidence of course enrolment – requested information not supplied to Tribunal – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2 cls 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 18 September 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 1 August 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).

4. The applicant appeared before the Tribunal on 7 February 2019 to give evidence and present arguments.

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

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 (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 for the delegate was whether the applicant had sufficient funds, the issue presently for the Tribunal is whether the applicant is enrolled in a course of study.

8. Clause 500.211 of Schedule 2 of the Regulations 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. The applicant applied for the visa in order to undertake study in a Master of Professional Accounting which course ran from 5 March 2018 to 2 November 2018. He confirmed that he was not currently enrolled but that he intended to do so following the Tribunal hearing. As discussed with the applicant at the hearing, whilst the critical issue before the delegate was whether he satisfied the financial capacity requirement in the Regulations, the issue before the Tribunal was whether at the time of decision he meets the primary criteria in in cl.500.211 to cl.500.218.

11. At the applicant’s request for additional time,  the Tribunal agreed to grant the applicant until 3.00pm 8 February 2019 in which to provide evidence of his current enrolment.

12. At 3.10pm on 8 February 2019 the Tribunal received a submission from the applicant’s representative concerning the applicant’s financial capacity and seeking additional time for the applicant  to obtain enrolment. Even though the submission was received after the deadline agreed by the Tribunal, the Tribunal has carefully considered the request for additional time however it not prepared to grant the request.

13. On 18 January 2019 a written invitation to attend a hearing on 7 February 2019 was sent to the applicant via his migration agent.  In that invitation he was requested to provide evidence of enrolment in a full-time registered course to the Tribunal at least 7 days before the hearing. Such evidence has not been provided.  At the hearing the applicant was granted a further day in which to provide evidence of enrolment in a course of study . He has not done so.  The Tribunal is satisfied that the applicant has had sufficient time since the date of the hearing invitation in which to satisfy the primary criteria in cl. 500.211.

14. As the applicant has not submitted confirmation of enrolment by the time agreed by the Tribunal, the Tribunal is not satisfied that at the time of this decision, that  the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

15. 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

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

    Stephen Conwell
    Member