ISSA (Migration)

[2017] AATA 3154

ISSA (Migration) [2017] AATA 3154 (4 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rami Ismail Hassan Issa

CASE NUMBER:  1617319

DIBP REFERENCE(S):  BCC2016/3105326

MEMBER:David Barker

DATE:4 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 04 December 2017 at 6:44am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant is enrolled in a course of study – Applicant not enrolled in a course of study – Decision affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth), Pt 2 Div 3
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), 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 on 11 October 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 19 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 they were not satisfied the applicant intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 30 November 2017 to give evidence and present arguments. Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

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.

8. The issue before the delegate was whether the applicant met the criterion in cl.500.212. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for 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. In his oral evidence to the Tribunal the applicant acknowledged he is not currently undertaking any studies in Australia and is not enrolled in, or has an offer of enrolment to any course.  He said he had enrolled in a Bachelor of Business course, but after the Department refused his application for a further student visa, he thought it would be better to wait for the Tribunal decision before commencing the course.  he said it would have been of no use to him to study for only six months and then find out he could not get another visa.

12. In order to clarify specific information in relation to the applicant’s current circumstances, the Tribunal put particulars of information, 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 could 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.

13. The particulars of the information put to the applicant were that he had enrolled in a Bachelor of Business course, which was to run from 16 January 2017 to 6 December 2019, but his enrolment was cancelled on 14 February 2017 due to his non-commencement of studies.  The Tribunal told the applicant that this information is relevant because it appears to indicate he is not currently enrolled in a registered course or undertaking study in Australia. The Tribunal explained that if it relies on that information it may find the applicant does not meet a threshold criterion for the grant of a Student visa and that if the Tribunal finds he did not meet an essential requirement it will affirm the decision to refuse the Student visa.

14. The Applicant told the Tribunal he did not wish for time to consider his response to the information put to him, pursuant to s.359AA and proceeded to state, in relation to the cancellation of the Bachelor of Business course in February 2017, that he did not start studying in this course, because the Department refused his application for the Subclass 500 visa and he did not know if his review with the Tribunal would result in him getting the Student visa.

15. The Tribunal has considered the evidence provided by the applicant during the hearing and that contained in the Department and Tribunal files.  On the basis of the available evidence 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.

    David Barker
    Member