ELSHARKAWI (Migration)

[2019] AATA 5339

ELSHARKAWI (Migration) [2019] AATA 5339 (12 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohamed Elsayed Issa ELSHARKAWI

CASE NUMBER:  1722679

HOME AFFAIRS REFERENCE(S):          BCC2017/2673211

MEMBER:Wendy Banfield

DATE:12 August 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 12 August 2019 at 3:29pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – evidence of enrolment in a course of study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 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 6 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 27 July 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.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because it was determined the genuine temporary entrant criteria has not been met.

   Background

4. The applicant is a citizen of Egypt and is currently 31 years old. He came to Australia on 16 November 2006 as the holder of a Subclass 572 Student Visa. Since arriving in Australia the applicant has completed courses in English, Business, Information Technology, Frontline Management, Management, Commercial Cookery and Leadership and Management. The highest level of qualification the applicant has achieved to date is an Advanced Diploma. At the time he submitted the application that is the subject of this review, the applicant was enrolled in a Bachelor of Business, however, that enrolment was cancelled for non-commencement of studies.

5. The applicant had been invited to attend a hearing on 20 August 2019, however, on 26 July he contacted the Tribunal to advise that his mother in Egypt is to have a heart operation and he wanted to change the time of the hearing. He was asked to make the request in writing, giving the reason for the request and attaching any supporting documents. On 30 July 2019 the applicant wrote to the Tribunal requesting a postponement of his hearing because he had arranged to travel to Egypt from 15 August to 1 December 2019. The applicant said in view of the hearing being scheduled in his case, he could change his travel dates to 15 August to 15 October and would therefore be away for 2 months from 15 August 2019.

6. The applicant attached medical documents in support of his request stating his mother “needs to have surgery and will take one month to recover”. The medical evidence provided refers to the patient needing a “diagnostic catheterisation” procedure on 1 September 2019 with a recommended one month of rest afterwards. The Tribunal assessed the evidence and decided not to defer the applicant’s hearing as requested. While it is his choice to return to his home country to be with his mother during her procedure, it does not appear from the documents that the applicant’s mother is having major surgery, rather a minimally invasive diagnostic procedure.  Since the applicant had arranged his travel, the Tribunal offered to bring the hearing date forward which the applicant agreed to.

7. The applicant appeared before the Tribunal on 7 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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.

11. ‘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.

12. On 24 July 2019 the applicant was invited to attend a hearing scheduled for 20 August 2019. Following the applicant’s request for a postponement and with his agreement, the Tribunal brought the date forward to 7 August 2019 to accommodate his travel plans. The invitation to attend a hearing 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. No evidence of enrolment was provided prior to the hearing.

    On 6 August 2019 the applicant submitted an email explaining that at the time he applied for the visa, he was enrolled in a Bachelor Degree in Business but due to his mother and brother’s ill health and depression affecting his studies, he cancelled his enrolment and returned to Egypt in January 2018 for two months and in July 2018 for approximately 4 months.  The applicant advised he had returned to Australia in November, 2018 but had not re-enrolled for further studies. According to the applicant: “My intention is to resume studies next year and I will provide details to the Department of Immigration when I do.”

13. In the Tribunal’s hearing introduction on 7 August 2019 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. During the hearing, the applicant was further advised that to be granted a Student Visa, enrolment in a course of study is required at the time of decision. The Tribunal asked the applicant about his enrolment in a Bachelor of Business at the time of application and he confirmed he had not commenced the course. The applicant repeated his written evidence that his mother and brother had both suffered health conditions, the applicant had to travel to Egypt to visit them and he had also been depressed by these events. As a result he could not concentrate on studying. The applicant advised he still intends to undertake a Bachelor degree in Australia and would seek re-enrolment on his return to Australia.

14. The Tribunal considered the applicant’s evidence but notes his previous enrolment in a Bachelor degree was cancelled and he has not re-enrolled in any course of study. Although he was advised several times during the hearing that it is necessary to be enrolled before a Student Visa can be granted, the applicant has not provided evidence of being enrolled in any course at the present time. 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.

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.

    Wendy Banfield
    Member