Kiani (Migration)

[2019] AATA 3168

Kiani (Migration) [2019] AATA 3168 (7 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Furqan Nasir Kiani

CASE NUMBER:  1717080

DIBP REFERENCE(S):  BCC2017/1366728

MEMBER:M. Edgoose

DATE AND TIME OF

ORAL DECISION AND REASONS:         7 March 2019 at 12:54 pm (VIC time)

DATE OF WRITTEN RECORD:                14 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – no evidence of enrolment – decision under review affirmed

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 500.111, 500.211-500.218, r 1.03

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 July 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 7 March 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The time is 12.48 pm on 7 March 2019. 

4. This is an oral decision in Case No 1717080 and the applicant’s name is Furqan Nasir Kiani.

5. This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 July 2017 to refuse to grant you a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

6. You applied for the visa on 12 April 2017 to undertake study in Australia. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained two sub-classes: Sub-class 500 (Student) and Sub-class 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Sub-class 590 (Student Guardian) visa.

7. The delegate in your case refused to grant the visa on the basis that you did not satisfy the requirements of cl. 500.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that you were enrolled in a course of study and therefore do not meet the requirement for the grant of a Student visa. .

8. You appeared before the Tribunal today via telephone to give evidence and present arguments.

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 in the present case is whether the applicant is enrolled in a course of study as required for the grant of a student visa.

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. On 15 February 2019 a written invitation to attend the hearing today was sent to you via your migration agent. In that invitation you were requested to provide evidence of enrolment in an approved course of study to the Tribunal at least 7 days before the scheduled date of the hearing. Such evidence has not been provided. 

13. At the hearing today you were again requested to provide this evidence to the Tribunal, such as a copy of your current Confirmation of Enrolment.  You have not done so.

14. In your sworn evidence before the Tribunal, you confirmed that you were last enrolled in a Diploma of Business Management in 2018.  You further confirmed in your sworn evidence that you are not currently enrolled in any course of study in Australia.  You asked for further time however, the Tribunal gave you reasons as to why that further time was not going to be granted namely, that you have had this decision since 17 July 2017 and you have not continued to be enrolled since that time and as at the hearing today on 7 March 2019, you confirmed that you are not enrolled in a course of study.

15. Accordingly, there is no evidence before me that you are now enrolled in any course of study. Therefore the Tribunal is not satisfied that at the time of this decision, that you are enrolled in a course of study and accordingly cl.500.211 is not met.

16. 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. For these reasons, I have concluded that the decision under review should be affirmed.

17. It also should be noted that the applicant’s home city is Western Australia, in Perth, however the applicant on the day of hearing, was in Victoria, Melbourne.

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

19. This decision is made at 12.54pm on 7 March 2019.

    DECISION

20. The Tribunal affirms the decision under review.

    M. Edgoose
    Member