Khan (Migration)

[2018] AATA 5441

Khan (Migration) [2018] AATA 5441 (29 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Umair Aziz Khan
Mrs Raheela Mughal
Master Mohammad Huzaifa Khan

CASE NUMBER:  1717978

HOME AFFAIRS REFERENCE(S):           BCC2017/1574575

MEMBER:Gabrielle Cullen

DATE:29 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 29 October 2018 at 12:18pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – not enrolled in a course of study – no evidence of enrolment provided –Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.208
Education Services for Overseas Students Act 2000

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 27 July 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 2 May 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas on the basis that the first named applicant 9the applicant) did not satisfy the requirements of cl.500.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not enrolled in a course of study at the time of the decision.

4. On 14 August 2017 the applicants lodged an appeal to the Tribunal and attached the decision of the Department.

5. On 6 September 2018 the Tribunal wrote to the applicants and invited them to attend a hearing on 29 October 2018. The letter, among other matters, requested the applicant provide a current Confirmation of Enrolment (COE) or other documents that show he is currently enrolled in a course of study as defined in cl.500.211. It noted that this is required for the grant of a student visa.

6. The applicant appeared before the Tribunal on 29 October 2018 to give evidence and present arguments. The applicant provided to the Tribunal evidence of past course completion.

7. The Tribunal outlined that the issue before it is whether he is enrolled in a course of study as required by cl.500.211. It raised with him via the process outlined in s.359AA that the information from PRISMS records indicates he is not currently enrolled in a course of study and ceased enrolment in the Master of Business Administration on 23 June 2017. He said at that time he could not pay the fees as his parents were in Saudi Arabia on a pilgrimage and could not send him the money from there. He outlined why he needs to complete the Master of Business Administration including for his future career. He said he had gone to the Universities not the College but could not re-enrol.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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 before the delegate was whether the applicant met the criterion in cl.500.211 and is the same at the time of this decision.

10. 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.

11. ‘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.

12. The Tribunal raised with the applicant the requirement of enrolment for the grant of a student visa and referred to cl. 500.211. It has considered his response; however the evidence from the applicant and PRISMS records, raised with the applicant via s.359AA, is that he is not currently enrolled in a course of study and ceased enrolment in 2017. He has not provided any evidence that he is currently enrolled in any course of study. On the evidence before it, 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.

13. 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

14. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Gabrielle Cullen
    Member