Baig (Migration)

[2018] AATA 57

Baig (Migration) [2018] AATA 57 (18 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Owais Baig

CASE NUMBER:  1619308

DIBP REFERENCE(S):  BCC2016/2864816

MEMBER:Wendy Banfield

DATE:18 January 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 18 January 2018 at 10:07pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Tribunal is not satisfied that the applicant is enrolled in a course of study – Certificate of Enrolment not supplied – Applicant failed to attend hearing

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994 rr 1.03 Schedule 2 cls 500.111, 500.211 - 500.218

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 on 11 November 2016 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 29 August 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 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 the applicant had breached his visa conditions and did not meet the criteria of a genuine temporary entrant.

   Background

4. The applicant is a citizen of Pakistan and is 30 years old. He first came to Australia on 6 February 2012 as the holder of a Subclass 572 Student Visa. Since his arrival the applicant has been enrolled in several Certificate and Diploma courses.

5. On 14 December 2017 the applicant was invited to attend a hearing on 18 January 2018 to give evidence and present arguments in his case. There was no response to the invitation. SMS hearing reminders were sent to the applicant’s phone on 11 and 17 January 2018, however; the SMS messages failed to deliver. The applicant did not respond and did not attend the hearing at the time and place scheduled

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. 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 course of study as required for the grant of a student visa.

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 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 Tribunal has not received any evidence to demonstrate that the visa applicant is currently enrolled in a course of study.  In the invitation to attend a hearing dated 14 December 2017, the applicant was asked to provide a copy of a current Certificate of Enrolment (COE) as required for the grant of a student visa. However, no COE has been provided. 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.

11. 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

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

    Wendy Banfield
    Member