KHADKA (Migration)

[2018] AATA 5406

KHADKA (Migration) [2018] AATA 5406 (5 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Binod KHADKA

CASE NUMBER:  1712510

HOME AFFAIRS REFERENCE(S):           BCC2017/1717543

MEMBER:Wendy Banfield

DATE:5 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 05 November 2018 at 10:31pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment – not enrolled in a registered course – compassionate grounds – failed marriage – depression and anxiety – no discretion – 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

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 May 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 14 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.500.212 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 Nepal and is currently 31 years old. He came to Australia in 2007 to study Information Technology. Since his arrival, the applicant has complete courses in Information Technology, Business and Management. He was also a dependent on his former wife’s student visa. At the time of the Tribunal hearing, the applicant was not enrolled in a course of study.  

5. The applicant appeared before the Tribunal on 8 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

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. On 8 October 2018 the applicant was invited to attend a hearing scheduled for 15 October 2018. The invitation 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. In the introduction to the Tribunal hearing on 15 October 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 said he was enrolled in 2017 when he applied for the visa which is the subject of this review but his COE was later cancelled. He was advised again during the hearing that the Migration Regulations require him to be enrolled in a course of study in order to be granted a student visa and that the hearing invitation asked him to provide a current COE. The applicant said he attempted to re-enrol with an education provider but was unable to.

12. The applicant did not provide evidence of enrolment or other documents that show he is enrolled in an approved course of study. In his written statement to the Tribunal, the applicant asked to be able to continue his studies on compassionate grounds. The applicant outlined in his statement and at the hearing, his failed marriage with his former wife and difficulties he experienced as a result. The applicant had also submitted in evidence a Psychological Report dated 2 October 2018 that reported the applicant’s account of his depression and anxiety that was said to have affected his studies. Although the applicant has provided some reasons for his situation, enrolment in a course of study is a mandatory requirement for the grant of a student visa and the Tribunal does not have any discretion in this matter.

13. 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.

14. 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

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

    Wendy Banfield
    Member