ISMAEIL (Migration)

[2018] AATA 5100

ISMAEIL (Migration) [2018] AATA 5100 (3 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ABDELWAHED SABRY ABDELWAHED ISMAEIL

CASE NUMBER:  1700197

HOME AFFAIRS REFERENCE(S):           BCC2016/3122892

MEMBER:Wendy Banfield

DATE:3 September 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 03 September 2018 at 3:15pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa –genuine temporary entrant criterion – not enrolled to study – poor study history – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.111, 500.211, 500.212, 500.218
Education Services for Overseas Students Act 2000

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 20 December 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 20 September 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 it was determined the genuine temporary entrant criteria had not been met.

   Background

4. The applicant is a citizen of Egypt and is currently 30 years old. He came to Australia in 2006 as the holder of a Subclass 572 Student Visa. At the time the applicant applied for the visa which is the subject of this review, he was divorced with one child who remained living in the applicant’s home country. Since arriving in Australia the applicant has completed a number of courses in English, Business Administration, Frontline Management, Marketing and Human Resources. At the time of application he was enrolled to study a Diploma of Hospitality Management but by the time of the Tribunal hearing, that enrolment had been cancelled.

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

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 an approved 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 invitation to attend a Tribunal hearing dated 6 February 2018 asked the applicant to provide a copy of a current Certificate 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. The applicant did not submit a COE as requested.

11. At the Tribunal hearing on 5 March 2018 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. The applicant did not provide evidence of enrolment or other documents that show he is enrolled as required. According to the applicant’s evidence, he had been enrolled in a Diploma of Hospitality Management course but due to his father passing away, he had not been attending.

12. The applicant said he went overseas in July 2017 for 3 months when his father was ill. The Tribunal put to the applicant that it appeared his Diploma of Hospitality Management had been cancelled but he said that was not the case. He claimed he had commenced the course in October 2017 (he later corrected this to October 2016) and had just not attended for a few months. The applicant was asked whether he had a Certificate of Enrolment for the course and he said he did not. He claimed to have been studying for about nine months before going overseas.

13. In accordance with section 359AA of the Migration Act, the Tribunal put to the applicant, particulars of information that it considered would be the reason, or a part of the reason, for affirming the decision under review. The applicant was advised the information is relevant to the review because, subject to his comment or response, it appeared he did not meet a requirement for the grant of a student visa. The information put to him was that according to the Provider Registration and International Student Management System (PRISMS), he is not currently enrolled in a course of study because his Diploma of Hospitality Management has been cancelled. The applicant was told that if the Tribunal relies on the information it may lead to the decision under review being affirmed. He was invited to comment on or respond to the information and advised that he may seek additional time, in which case, the Tribunal would consider his request.

14. The applicant asked when the course was cancelled and the Tribunal advised that according to the information available, it was October 2017. The applicant agreed and said it was because he had not been attending. He referred again to his father having passed away in November 2017. The applicant claimed he wanted to go back to the college and complete the course. The Tribunal advised the applicant again that in order to be granted a student visa, he had to be enrolled to study.  The applicant said at the time he had been worried about who would look after his father.

15. The applicant did not provide evidence of enrolment prior to, or post-hearing and for this reason, 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.

16. 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

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

    Wendy Banfield
    Member