Hassan (Migration)

[2019] AATA 2983

Hassan (Migration) [2019] AATA 2983 (25 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sardar Gul Hassan

CASE NUMBER:  1712304

HOME AFFAIRS REFERENCE(S):          BCC2016/3864292

MEMBER:Wendy Banfield

DATE:25 June 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 25 June 2019 at 4:33pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met – not enrolled in any course of study– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.111, 500.211

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 19 May 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 17 November 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

   Background

3. The applicant is a citizen of Pakistan and is currently 33 years old. He came to Australia holding a Subclass 572 Student Visa on 19 October 2005. Since arriving in Australia the applicant has completed courses in Business, Commerce and Accounting.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because it was determined the genuine temporary entrant criteria had not been met.

5. The applicant appeared before the Tribunal on 8 October 2018 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 an approved course of study as required for the grant of a Student Visa.

9. 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.

10. ‘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.

11. On 4 September 2018 the applicant was invited to attend a hearing scheduled for 8 October 2018. The invitation 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. At the time of the hearing, evidence before the Tribunal indicated the applicant was enrolled.

12. In the Tribunal’s hearing introduction 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.

13. The applicant had studied a Master of Professional Accounting which was completed in 23 June 2018. The applicant had re-enrolled in a Master of Accounting (separate to the Master of Professional Accounting) that he said required the completion of another four subjects. This course was to start on 7 November 2018 and finish on 22 June 2019. The applicant advised he had taken a semester off between June and November 2019 as he intended to return to Pakistan but then decided not to. The applicant said he planned to move back to Pakistan after completing his studies and look for employment. The applicant did not indicate an intention to undertake any further study.

14. The applicant submitted financial statements from his education provider after the hearing but as of the date of this decision, no post-hearing submissions or further evidence have been provided to demonstrate the applicant has enrolled in a course of study after 22 June 2019. 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