KHAN (Migration)

[2018] AATA 134

KHAN (Migration) [2018] AATA 134 (30 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SHAHIN IMTIAZ KHAN

CASE NUMBER:  1622543

DIBP REFERENCE(S):  BCC2016/3256273

MEMBER:David Barker

DATE:30 January 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 30 January 2018 at 1:01pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Not currently undertaking studies – Recent course enrolment cancelled – Worked in Australia 

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65

Migration Regulations 1994 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 on 8 December 2016 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 30 September 2016. 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 30 January 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

8. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course ofunder 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. In his oral evidence to the Tribunal the applicant said he is not currently undertaking any studies in Australia and is not enrolled in, or has an offer of enrolment to any course.  He said he wished to complete a Bachelor of Business course, so as to show his family in Bangladesh that his time in Australia had been worthwhile.  He said he had completed an Advanced Diploma of Accounting in 2013, but had failed to complete the two Bachelor of Accounting programs he had subsequently enrolled in.  He said his most recent enrolment was cancelled in or around July 2017.

11. The applicant said his family were disappointed with his lack of academic progress and had stopped financially supporting him in late 2015.  He said this upset him and made him depressed.  The applicant said he has worked for a fast food business, KFC, for the last seven years and has recently been successful in applying for a position in a KFC outlet in Dubbo, NSW.  He said he has applied for a regional work visa and is trying to get sponsorship for this new employment situation.

12. The Tribunal has considered the evidence provided by the applicant during the hearing and that contained in the Department and Tribunal files. There is consistency between this evidence.  On the basis of the available evidence 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 decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    David Barker
    Member