Kc (Migration)

[2018] AATA 5546

Kc (Migration) [2018] AATA 5546 (21 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manish Jung Kc

CASE NUMBER:  1713408

HOME AFFAIRS REFERENCE(S):           BCC2017/1028800

MEMBER:David Barker

DATE:21 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 21 November 2018 at 1:42pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – ceased study in MBA course – not enrolled in a course of study at time of decision – 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, 500.212

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 5 June 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 15 March 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.500.212 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 21 November 2018 to give evidence and present arguments.

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

   Background

6. The applicant is a national of Nepal and is 32 years old.

7. The Department delegate’s decision record, a copy of which was provided with the review application states the applicant arrived in Australia in April 2007 and since that time has been granted eight previous student visas. The delegate noted the applicant has successfully completed a Diploma of Hospitality Management and a Bachelor of Business (Information Technology).  The delegate noted the applicant had then enrolled in a Master of Business Administration (MBA), which was due to be completed on 31 December 2017, but that the time of his application for  the subclass 500 visa he indicated he intended to change to a Diploma of Business course.  The delegate noted the Provider Registration and International Student Management System (PRISMS) regarding the applicant’s studies in Australia gave no indication he actually enrolled in the Diploma of Business course within the three month period after he had given an indication that this was his intention.

8. On 16 October 2018, the Tribunal wrote to the applicant inviting him to attend a hearing on 21 November 2018. That invitation among other matters, requested the applicant provide evidence of his current studies, an explanation of any gaps in his enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

9. The Tribunal received no submission or other documents from the applicant prior to the hearing.

   The Hearing

10. At the start of the hearing the Tribunal provided the applicant with a copy of the PRISMS records outlining his study history in Australia and gave him the opportunity to consider this information. 

11. In response to a question as to whether he was currently studying or had a current offer of enrolment in a course, the applicant gave evidence he ceased his studies at the end of the 2017 academic year, in or around November 2017.  He said that he was at that time studying the MBA, but failed two subjects in his final semester of the course.  He said he had difficulty getting a further extension Confirmation of Enrolment (CoE), from the education provider because of his unsatisfactory academic performance.   The applicant said that once the Department refused his visa application he decided to stop seeking an extension CoE and decided to travel to Bourke in Western NSW to take up employment as a restaurant manager.  He said his intention was to work in Bourke whilst he waited for his review hearing at the Tribunal.  He said he took up this job towards the end of 2017 and that before then, he had for around two years, managed a bar in Surry Hills, NSW.

12. The applicant gave evidence he has not been that motivated to study the MBA, as he is more interested in computers and information technology.  He said it his mother’s wish that he study the MBA.  He said his intention is to at some stage take up study in a Master of Information Systems.  Notwithstanding this, he contended that he wants to finish the MBA and then return to his home country. He said there is a familial expectation he return to Pakistan to assist run the family business, as his father has declining health.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

14. 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.

15. 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.

16. ‘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.

17. The Tribunal has considered the evidence provided by the applicant during the hearing and that contained in the Department and Tribunal files. The Tribunal accepts the applicant has undertaken studies in a number of courses since his arrival in Australia in 2007. The Tribunal acknowledges the applicant has ongoing strong familial ties to Pakistan. However, on the basis of the applicant’s oral evidence, the Tribunal finds he ceased study in a MBA course in or around in or around November 2017.  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. 

18. 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.

19. 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

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

    David Barker
    Member