Chowdhury (Migration)

[2017] AATA 2436

Chowdhury (Migration) [2017] AATA 2436 (10 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Abu Naser Md Hasan Chowdhury
Mrs Nura Ayesha
Miss Nasiha Chowdhury

CASE NUMBER:  1707473

DIBP REFERENCE(S):  CLF201577303

MEMBER:David Barker

DATE:10 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 10 November 2017 at 11:21am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – No Certificate of Enrolment – Cessation of studies – Non-attendance at hearing

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.12, r 1.40A, Schedule 2, cl 572.223

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 17 March 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 9 December 2015 to undertake study in Australia. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575), or whether the applicant has the support of the relevant Minister (Subclass 576).

3. The delegate in this case refused to grant the visas on the basis that the primary visa applicant (the applicant) did not satisfy the requirements of cl.572.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because of a lack of academic progress, the applicant’s study and immigration history, potential circumstances in Australia and a lack of value of the courses to his future.

4. The applicants were invited to attend a hearing on 9 November 2017.  The applicants did not respond to the invitation and did not attend the hearing at the time and place scheduled.

5. In the hearing invitations sent to the applicants on 16 October 2017, the applicant was asked to provide a copy of his current Certificate of Enrolment (COE) as required for the grant of a student visa. The primary applicant did not submit a COE as requested.

6. The Tribunal is satisfied the applicant was invited to give oral evidence and present arguments at a hearing at 9:30 am on 9 November 2017.  However on 9 November 2017 the applicant did not appear before the Tribunal. The tribunal is satisfied the applicant was notified of the hearing date in the manner he had requested, by email at the email address he provided to the Tribunal. This matter has therefore been determined on the evidence available to the tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue before the delegate was whether the applicant met the criterion in cl.572.223. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

9. With limited exceptions, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application. This requirement does not apply to certain ‘eligible higher degree students’, ‘eligible university exchange students’ and ‘eligible non-award students’. There is no evidence before the Tribunal that that the applicant is an eligible higher degree student as defined in cl.573.111 and 574.111 respectively, or an eligible university exchange student or eligible non-award student for the purposes of Subclass 575 as defined in cl.575.111.

10. The applicant has previously studied Business, Commerce and Accounting courses.  His enrolment in the last of these, which was a Bachelor of Business (Accounting), was cancelled on 30 may 2016 due to the applicant notifying the education provider of his cessation of studies. There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.

11. Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU. The applicant is neither supported by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian.

    Member of Family Unit – Secondary visa applicants

12. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria. Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

13. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the secondary applicants, Mrs Nura Ayesha and Miss Nasiha Chowdhury are unable to meet the criteria because they are not a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.572.223.

14. For these reasons, the decision under review must be affirmed.

    DECISION

15. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    David Barker
    Member