Kazemi (Migration)

[2018] AATA 5579

Kazemi (Migration) [2018] AATA 5579 (13 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammad Kazemi

CASE NUMBER:  1701607

DIBP REFERENCE(S):  BCC2016/3148303

MEMBER:M. Edgoose

DATE AND TIME OF

ORAL DECISION AND REASONS:          13 August 2018 at 10:40 am (VIC time)

DATE OF WRITTEN RECORD:                26 October 2018

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment requirements – evidence of enrolment in approved course –no Certificate of Enrolment (COE) – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 January 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 13 August 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in case number 1701607.  The applicant's name is Mr Kazemi.

4. This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 January 2017 to refuse to grant you a Student (Temporary) (Class TU) visa under section 65 of the Migration Act 1958 (the Act).

5. You applied for the visa on 22 September 2016 to undertake study in Australia.  At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained two sub-classes, Sub-class 500 (Student) and Sub-class 590 (Student Guardian). The applicant applied for this visa to undertake study in Australia and does not claim to meet the criteria for a Sub-class 590 (Student Guardian) visa.

6. The delegate in your case refused to grant the visa on the basis that you did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that you were a genuine student who intends genuinely to stay in Australia temporarily.

7. You appeared before the Tribunal today via telephone to give evidence and present arguments.

8. While the issue before the delegate was whether you are a genuine temporary entrant, the issue before the Tribunal now is whether, at the time of this decision, you meet the enrolment requirements for a student visa.

9. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 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 a course of study, as required for the grant of a student visa.

10. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study:  clause 500.211(a). The applicant does not claim to meet any of the alternative criteria in clause 500.211.

11. ‘Course of study’ is relevantly defined in clause 500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in regulation 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.

12. On 11 July 2018 a written invitation to attend the hearing today was sent to you.  In that invitation you were requested to provide evidence of enrolment in an approved course of study to the Tribunal at least seven days before the scheduled date of the hearing.  Such evidence has not been provided.

13. At the hearing you were again requested to provide this evidence to the Tribunal, such as a copy of your current Certificate of Enrolment.  You have not done so.

14. In your sworn evidence before the Tribunal you confirmed that you were last enrolled in a Certificate IV in Commercial Cookery in September 2017.  You further confirmed in your sworn evidence that you are not currently enrolled in any course of study in Australia.

15. Accordingly, there is no evidence before me that you are now enrolled in any course of study.  Therefore the Tribunal is not satisfied that at the time of this decision that you are enrolled in a course of study and accordingly clause 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.  For these reasons, I conclude that the decision under review should be affirmed.

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

18. This decision is made at 10.40 am on 13 August 2018.

    DECISION

19. The Tribunal affirms the decision under review.

    M. Edgoose
    Member