Khan (Migration)

[2018] AATA 3805

Khan (Migration) [2018] AATA 3805 (7 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sarfaraz Ahmad Khan

CASE NUMBER:  1710053

DIBP REFERENCE(S):  BCC2015/452056

MEMBER:P. Wood

DATE OF ORAL DECISION:  7 August 2018

DATE OF WRITTEN STATEMENT:         7 August 2018

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 07 August 2018 at 1:18pm

CATCHWORDS
MIGRATION – Student (Temporary)(Class TU) visa – Subclass 572 Vocational Education and Training Sector – Federal Circuit Court remittal – Enrolment requirement – No evidence of enrolment or current offer of enrolment – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2 cl 572.223

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 26 May 2015 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 10 February 2015 to undertake study in Australia. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575), or whether the applicant has the support of the relevant Minister (Subclass 576).

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl. 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The Tribunal first made a decision in this matter on 15 September 2016. By order dated 27 April 2017 of the Federal Circuit Court of Australia, the application was brought back before the Tribunal (differently constituted).

5. The applicant appeared before the reconstituted Tribunal on 7 August 2018 to give evidence and present arguments. The reconstituted Tribunal gave its decision on the review at the conclusion of the hearing held on 7 August 2018. The following are the reasons for that decision.

6. The applicant was represented in relation to the review by his registered migration agent. The registered migration agent however did not attend the hearing on 7 August 2018.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue before the delegate was whether the applicant met the genuine temporary entrant criterion in cl. 572.223(1)(a). However, arising from the applicant’s testimony during the early stages of the hearing on 7 August 2018, the issue for the Tribunal became whether, at the time of decision, the applicant met the enrolment requirement for a student visa.

9. The Tribunal explained to the applicant, and the applicant confirmed that he understood, that the determinative issue for the Tribunal had changed from the genuine temporary entry criteria to the enrolment requirement.

10. By letter dated 18 July 2018 the Tribunal invited the applicant to appear before it on 7 August 2018. The Tribunal is written invitation to attend the hearing asked the applicant to provide the Tribunal with a copy of a current certificate of enrolment. The same letter from the Tribunal asked the applicant to provide any other documents which show that the applicant is currently enrolled in a course or has an offer of enrolment in a registered course. He did not do so.

11. In accordance with the procedure set out in section 359AA of the Act, the Tribunal put the applicant’s enrolment records from the Provider Registration and International Student Management System to him. In his response, the applicant confirmed his earlier testimony that he is not presently enrolled as required by the Regulations.

12. With limited exceptions, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application. This requirement does not apply to certain ‘eligible higher degree students’, ‘eligible university exchange students’, and ‘eligible non-award students’. There is no evidence before the Tribunal that that the applicant is an eligible higher degree student as defined in cl.573.111 and 574.111 respectively, or an eligible university exchange student or eligible non-award student for the purposes of Subclass 575 as defined in cl.575.111.

13. There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.

14. Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU. The applicant is neither supported by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian.

15. For these reasons, the decision under review must be affirmed.

    DECISION

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

    P. Wood
    Senior Member