Memon (Migration)

[2021] AATA 5487

Memon (Migration) [2021] AATA 5487 (9 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdul Waheed Memon

REPRESENTATIVE:  Ms Thanh Mai-Hang Nguyen (MARN: 1802335)

CASE NUMBER:  2000320

HOME AFFAIRS REFERENCE(S):          BCC2019/4672270

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         9 November 2021 at 1:24 pm (VIC time)

DATE OF WRITTEN RECORD:                28 February 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 28 February 2022 at 1:03pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –not currently enrolled in a registered course of study –no current confirmation of enrolment– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.211

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 December 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 9 November 2021 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. Mr Abdul Waheed Memon, you applied for a student visa on 18 September 2019. The Delegate refused to grant your visa on the basis that you did not satisfy the requirements of Clause 500.211 of Schedule 2 to the Migration Regulations because you failed to provide evidence of current enrolment.

4. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision.  Reading from that decision it says that you lodged your application on 18 September and at the time of lodgement you did not provide any evidence of a valid confirmation of enrolment.

5. Reading from the decision, it states:

   On 4 November 2019 correspondence was sent to the applicant requesting him to provide evidence that they were enrolled in an approved course of study.  A recent search of department records confirms that to date the applicant has not submitted any information or evidence of a valid confirmation of enrolment. 

   The Provider Registration and International Student Management System PRISMs also indicates that the applicant is currently not enrolled in any Commonwealth Registered Institution and Courses for Overseas Students (CRICOS) registered course.

   It is considered that the applicant has been afforded ample time to present any further documentation in support of their application.  As the applicant is not enrolled, the applicant does not satisfy Regulation 500.211 for the grant of a student visa. 

6. Regulation 500.211 was detailed in your decision and what it says is that the clause provides that one of the following applies: The Applicant is enrolled in a course of study, seeking to remain in Australia because an institution requires you to do so during the marking of a post-graduate thesis, you are a foreign affairs student or you're a defence student. Well, none of those would seem to apply, and Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study which is 500.211(A). You don't claim to meet any of the other criteria in 211.

7. A course of study is defined as a full time registered course.  You have today told the Tribunal that the circumstances were that you came here and studied two ELICOS courses before enrolling in a Project Management course.  You failed two units that were actually called ‘project management’ which caused you some depression. 

8. You then enrolled in a Master of Management Information Systems.  You say your father lost a construction business in Pakistan.  There is no evidence to support that claim but that is what you say - which meant that you were unable to pay the fees and you say the last time you did any study was in September 2019 which is more than two years ago.

9. You say you have spoken to the education provider who has said if you are granted a new visa they will enrol you and you say it is your wish to study this Master of Management Information Systems and there is availability of a course next February.

10. You claim to have a migration agent that you say you have been in regular contact with and therefore I expect that you would understand the rules and requirements. 

11. The primary decision made this matter perfectly plain.  What it says is you haven't provided evidence of enrolment.  It included the requirement of 500.211 that you are enrolled in a course of study, so you have been on notice of this requirement since at least this decision was made almost two years ago.  I believe you have had plenty of time and opportunity to provide the evidence that you are enrolled and eligible for the grant of a visa but have failed to do so.

12. As you are not currently enrolled in a course of study you do not satisfy Clause 500.211 and are therefore not eligible for the grant of a student visa.

13. As you do not satisfy Clause 500.211 it is the decision of this Tribunal to affirm the decision under review and this decision was made at 1.24 pm on this, 9 November 2021.

    DECISION

14. The Tribunal affirms the decision under review.

    Tim Connellan
    Member