Nadeem (Migration)

[2018] AATA 606

Nadeem (Migration) [2018] AATA 606 (2 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hasnain Nadeem

CASE NUMBER:  1700214

DIBP REFERENCE(S):  BCC2016/3205721

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 5:19pm

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

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, cls 500.111, 500.211(1)(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 19 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 27 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 he did not satisfy the criteria of a genuine temporary entrant.

   Background

4. The applicant is a citizen of Pakistan and is currently 29 years old. He came to Australia on 10 October 2011 with the intention of studying accounting. Since his arrival in Australia the applicant has completed a Diploma and Advanced Diploma of Business and a Certificate IV in Accounting. The applicant has been enrolled in several other courses that were cancelled including Hospitality, Human Resources and Leadership and Management.

5. The applicant appeared before the Tribunal on 1 March 2018 to 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 is 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. The evidence was that prior to coming to Australia, the applicant had broken his leg which became problematic later on. He said he began studying but then sought to change his enrolment to a college closer to where he was living but he was unable to give his studies full attention due to his injury. The applicant declared he enrolled in a college in Burwood and was advised he could complete the units online. He claimed to have studied for two years but at completion, according to the applicant he was denied an academic transcript because he had not studied at the college in person. The applicant also claimed he was advised to enrol in an HR course by an agent but he had not wanted to study in that field. The applicant said if he is granted a visa, he will try and enrol at UTS. When the Tribunal pointed out the academic year had already commenced, he said he would take another course in the meantime. 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 Accounting; however, he did not provide evidence of current enrolment.

11. 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.

12. 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

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

    Wendy Banfield
    Member