KUMAR THAKUR (Migration)

[2018] AATA 1175

KUMAR THAKUR (Migration) [2018] AATA 1175 (12 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chakrabarti Shailendra KUMAR THAKUR
Master Samit Thakur
Mrs Usha Kumari Thakur

CASE NUMBER:  1700473

DIBP REFERENCE(S):  BCC2016/3249768

MEMBER:Wendy Banfield

DATE:12 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 March 2018 at 11:14pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant is enrolled in a registered course – Change in financial circumstances – Enrolment cancelled – Change in financial circumstances – Applicant not enrolled in a registered course

LEGISLATION
Education Services for Overseas Students Act 2000, Pt 2 Div 3
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cl 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 on 22 December 2016 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 30 September 2016. 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 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 criteria of genuine temporary entrant had not been met.

   Background

4. The primary applicant is a citizen of Nepal who is currently 37 years old. The secondary applicants are his wife and son, the applicant’s child having been born in Australia in 2010. The applicants came to Australia on 3 March 2008 as the holders of a Subclass 573 Student Visa.

5. The primary applicant completed a Master of IT in Australia as well as studies in English and Management. He enrolled to study an MBA but due to family and financial issues, his COE was cancelled. The applicant had also experienced difficulties with the course because of his background in IT rather than business. In addition to the courses completed, the applicant has been enrolled in courses in Cookery and Hospitality that were subsequently cancelled. In 2010 the secondary applicant, Samit Thakur was born. Samit was later diagnosed with autism which the applicant declared had an adverse effect on his ability to study.

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

7. The applicants were assisted in relation to the review by their registered migration agent.

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 in the present case is whether the applicant is enrolled in an approved course of study as required for the grant of 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 27 February 2018 the applicant’s representative requested a four week postponement of the hearing that was scheduled for 5 March 2018. The reason provided was that the applicant had been unable to obtain a letter of offer from an education provider and wanted time to get one. The Tribunal considered the applicant’s circumstances and decided to deny the request. This was because the applicant’s visa had been refused by the Department on 22 December 2016 and the applicant had ample opportunity to enrol.

13. The primary applicant attended the hearing at the time and place scheduled. He had not been able to secure a COE or letter of offer from a college by that time. The applicant explained his circumstances to the Tribunal which included his inability to pay the fees for his MBA which resulted in his COE being cancelled. Evidence was submitted of communications between the applicant and education provider in this regard. The applicant declared that subsequently, no college was prepared to enrol him. According to the applicant, he completed his Master of IT in 2010 but then wanted to obtain an MBA to help him with his business plans in Nepal.

14. The applicant explained that his son who was born in Australia had been diagnosed with autism and was attending a support school. He submitted evidence from NSW Health regarding his son Samit. The applicant said if he had to go back to Nepal now, it will be very difficult. The applicant reiterated that he had tried to secure enrolment in a course of study and asked the Tribunal for time after the hearing to do so. The Tribunal agreed the applicant could have one week post-hearing to provide any further evidence which would then be considered with the evidence already submitted. The applicant was advised he would need to provide further evidence by 12 March 2018.

15. At 4:03pm on 12 March 2018 the applicant submitted a letter of offer from Hannay International College for enrolment in a Diploma of Business. The applicant’s representative advised the applicant had been unable to obtain an offer letter for a Masters level course despite several attempts. It was claimed the applicant is still trying to get an offer letter for a Master’s degree and the Tribunal was urged to allow additional time.

16. The Tribunal does not consider it appropriate to permit the applicant additional time to try and secure a letter of offer for a Masters course. He has clearly been unable to re-enrol since having his enrolment cancelled by Holmes College in 2015. After 2015 the applicant enrolled in different courses but did not complete any. The applicant’s enrolment in a Diploma of Management is not considered to be for the purpose of genuine study; rather it appears he is seeking to enrol in a course that will allow him to be considered for a student visa to extend his residency in Australia. The applicant has already completed a Master of Information Technology and Diploma of Management in Australia which will be of benefit to him in future. While the Tribunal sympathises with the family situation of the applicants, they have now been in Australia for 10 years and in the circumstances it is appropriate to proceed to a decision in this case.

17. 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.

18. 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

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

    Wendy Banfield
    Member