HANIF (Migration)

[2020] AATA 3030

HANIF (Migration) [2020] AATA 3030 (21 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adnan Hanif

CASE NUMBER:  1726410

HOME AFFAIRS REFERENCE(S):          BCC2017/3022732

MEMBER:David Barker

DATE:21 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 21 May 2020 at 1:54pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – current enrolment in a registered course – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 500.211, 500.214; r 1.03

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 10 October 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 22 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) because they were not satisfied that adequate evidence of financial capacity was submitted or uploaded by the time the decision on this application was made by the delegate in August 2017.

4. The applicant was invited to appear before the Tribunal at hearings to give evidence and present arguments upon 24 March 2020. The Tribunal subsequently cancelled this in-person hearing through the need to minimise the risk of transmission of Coronavirus (COVID-19). The Tribunal has enhanced its capacity to provide applicant’s with the opportunity to participate in hearings by telephone or through other electronic mediums, and determined that there is not a need, nor is it appropriate, to postpone hearings indefinitely.

5. As a result of the Tribunal having information available to it which would provide the reason, or part of the reason for affirming the decision under review, the applicant was, on 6 May 2020, sent a letter pursuant to s.359A and s.359(2) of the Act. This letter explained comment, response and information that the applicant may wish to provide the Tribunal in response to the letter should be received by 20 May 2020. The letter further explained that if he could not cannot provide either the written comments, response, or information by 20 May 2020, the applicant could ask for an extension of time to respond, but that any such a request must be received by 20 May 2020. The letter explained to the applicant that if the Tribunal did not receive any comments, response, information, or a request for an extension of time to respond, by 20 May 2020, the Tribunal may make a decision on the review without taking any further action to obtain his views on the information or to obtain the information.  The letter explained to the applicant that in that circumstance he would also lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. No response was received from the Tribunal by 20 May 2020, or up until to the time of the Tribunal’s decision. In these circumstance the Tribunal  finds the applicant has lost the right to a hearing and has proceeded to make a decision on the evidence before it.

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

   BACKGROUND

8. The applicant is a national of Pakistan and is 37 years of age.  The applicant was granted a (Subclass 572) Student visa in in March 2011, which was valid until March 2013. The applicant applied for a further Student visa (Subclass 572), which was granted in May 2014 and which was valid until August 2017.

9. As part of the processing of the subclass 500 Student visa application which is the focus of the current review, the applicant was  asked by the Department to provide information, including in relation to his financial capacity to support his education and associated living costs. The applicant provided no evidence as to his financial capacity in response to the Department’s request.

10. The particulars of information highlighted in the s.359A letter sent to the applicant were that there is no indication on the Provider Registration and International Student Management System (PRISMS) records that he is currently enrolled in any course of study, or that he had finished any course of study since May 2014. The s.359A letter explained that undertaking study, or enrolment in a course, was a threshold requirement for the grant of a Subclass 500 Student visa. The applicant was informed in the letter that his lack of enrolment would be a reason for affirming the decision to refuse the visa that is the subject of the Tribunal review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. The issue before the delegate was whether the applicant met the criterion in cl.500.214. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

13. 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.

14. ‘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.

15. The Tribunal has considered the evidence contained in the Department and Tribunal files. The applicant has not responded to the Tribunal’s invitation to comment on, or respond to the particulars of information in the s.359A letter regarding the PRISMS records of his studies in Australia, or otherwise provide further information in support of his claims. 

16. On the basis of the evidence before it, the Tribunal finds that the applicant is not currently enrolled in a course of study and has not completed any courses of study since May 2014. 

17. There is no evidence before the Tribunal that the applicant has a current offer of enrolment in any course.  There is no claim otherwise.   The Tribunal has considered these factors and all the other evidence in the Department and Tribunal files. 

18. As a consequence, 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.

19. 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

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

    David Barker
    Member