ISSA (Migration)

[2018] AATA 5567

ISSA (Migration) [2018] AATA 5567 (28 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tarek Ibrahim Ismail ISSA

CASE NUMBER:  1717485

HOME AFFAIRS REFERENCE(S):           BCC2017/1616730

MEMBER:David Barker

DATE:28 November 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 28 November 2018 at 1:42pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – no evidence provided to the Tribunal – father was ill and in hospital at the time of application – enrolment – not enrolled in a course of study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 500.111, 500.211, 500.214

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 26 July 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 5 May 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 evidence requested of any documentation evidencing financial capacity having been submitted or uploaded up to the time the decision on this application was made by the delegate in July 2017.

4. The applicant appeared before the Tribunal on 28 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

   BACKROUND

6. The applicant is a national of Egypt and is 42 years old.

7. The Department delegate’s decision record, a copy of which was provided with the review application states that at the time the applicant lodged their application for the Subclass 500 student visa they were required by the online system, as part of the application process, to provide evidence of financial capacity. The delegate noted that while a letter of support was included with their application, documentation to evidence their financial capacity had not been uploaded at the time of lodgement or at the time of the delegate’s decision. The delegate determined that therefore failed to satisfy the provisions of subclause 500.214(3) and therefore did not meet cl. 500.214.

8. The applicant provided no evidence to the Tribunal, as to their financial capacity to support any education or regular living expenses, prior to the hearing.  During the hearing the applicant said the Department did not send him any specific request that he provide evidence of his financial capacity.  He said that his sponsor, at the time of the application, was his father. He said his father was ill and in hospital at the time of the application and was unable to financially support him. 

9. I relation to what he has been doing since his application for the Subclass 500 visa was refused, the applicant said he has been working two to three days per week in the construction industry.

   Particulars of information put to the applicant pursuant to s.359AA of the Act

10. The Tribunal put particulars of  information to the applicant from  a recent check of the Provider Registration and International Student Management System (PRISMS) to the applicant, pursuant to s.359AA of the Act, after first explaining to him this information would, subject to his comment and response, provide the reason, or part of the reason, for affirming the decision under review.  The Tribunal explained to the applicant that he could request time to consider his response and that the Tribunal would consider any such request. 

11. The  particulars of the information put to the applicant was:

    ·    the applicant enrolled in a Diploma of Marketing, which finished in June 2016;

    ·    the applicant’s enrolment in three Advanced Diploma of Marketing following that course were cancelled either due to the non-commencement of study, non-payment of fees or to a change in his study details.

    ·     there is no indication on the PRISMS records that the applicant is currently enrolled in any course of study, or that he has completed any courses since June 2016.

12. The Tribunal explained to the applicant that this information was relevant because it appears to indicate he is not currently enrolled in a course of study.  The Tribunal told the applicant that notwithstanding the Department refusing his application for a Subclass 500 Student visa because he did provide evidence, when requested that had funds from an acceptable source to support his education and living expenses, he also needs to satisfy the enrolment criterion in order to qualify for the Subclass 500 Student visa. The Tribunal explained that if it finds the applicant is not studying and does not have an offer of enrolment, it will affirm the decision to refuse the student visa. 

13. The applicant told the Tribunal he did not request any further time to consider his response and said that he was enrolled in a course at the time he lodged his application for the Subclass 500 Student visa in May 2017.  he said the provided a Confirmation of Enrolment (CoE) when he lodged his application and that he then waited for the Department to ask him who was going to provide support for his education and living expenses, as his father was ill in hospital.  He said the Department did not ask him for any further information about financial things.

14. When they Tribunal sked the applicant if there was anything further he wished to say, he said three was not.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. The issue before the delegate was whether the applicant met the criterion in cl.500.414. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

17. 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.

18. ‘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.

19. The Tribunal has considered the evidence provided by the applicant during the hearing and that contained in the Department and Tribunal files, including his comments and response to the particulars of information put to him pursuant to s.359AA of the Act regarding the PRISMS records of his studies in Australia.

20. The Tribunal accepts the applicant may have undertaken some studies since his arrival in Australia.  The Tribunal acknowledges his claim his father was unable to provide him with financial support for his education and living expenses around the time of his visa application in May 2017.  However, the Tribunal notes there is no evidence to demonstrate the applicant was actually enrolled in, or undertaking study in a course at that time.  The Tribunal accepts the applicant has, at least since his visa was refused in May 2017, supported himself through casual employment in the construction industry.

21. The Tribunal finds the applicant has not completed any courses in Australia since June 2016 and that his most recent enrolment, in an Advanced Diploma of Marketing and Communication, was cancelled in May 2017, due to the non-payment of course fees.  There is no evidence before the Tribunal that the applicant has a current offer of enrolment in any course.  The Tribunal has considered these factors and all the other evidence provided by the applicant during the hearing and in the Department and Tribunal files. 

22. 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.

23. 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

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

    David Barker
    Member