Liaquat (Migration)

[2018] AATA 601

Liaquat (Migration) [2018] AATA 601 (2 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Akif Liaquat

CASE NUMBER:  1700115

DIBP REFERENCE(S):  BCC2016/3028016

MEMBER:Wendy Banfield

DATE:2 March 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 02 March 2018 at 5:50pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Requirement to be enrolled in a registered course – Applicant not enrolled at time of decision

LEGISLATION
Education Services for Overseas Students Act 2000, Div 3 Pt 2
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211(a)

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 14 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 12 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.500.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the genuine temporary entrant criteria were not met.

   Background

4. The applicant is a citizen of Pakistan and is currently 30 years old. He came to Australia on 5 January 2011 with the intention of studying Information Technology. Since his arrival in Australia the applicant has completed courses in IT, Business, Management and Commercial Cookery. Prior to coming to Australia the applicant said he had studied Arts and Computer Science. According to the applicant if he is granted a student visa he plans to re-enrol to study but he has been unable to so far due to his visa status.

5. The applicant appeared before the Tribunal on 1 March 2018 give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 a student visa.

8. 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.

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. The applicant attended the hearing and gave evidence in support of his application. He said he completed an Advanced Diploma and was then offered the opportunity to work in a business owned by his father’s friend. For this reason the applicant said he undertook a Certificate course in commercial cookery. However, the job offer did not eventuate. The applicant said his mother was sick with diabetes and while he wanted to return to Pakistan to visit, his family advised him to continue studying. The applicant had a gap in his studies from August 2015 to May 2016 which he attributed to being distracted due to his mother’s ill health. The applicant said he also had to undergo surgery himself which affected his grades.

11. The Tribunal explained to the applicant at the hearing that in order to be eligible for the grant of a student visa, he had to be enrolled in an approved course of study. The applicant stated he still wants to complete a Bachelor of Business; however, he did not provide evidence of current enrolment as required.

12. 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.

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.

    Wendy Banfield
    Member