Nawaz (Migration)

[2020] AATA 6017

Nawaz (Migration) [2020] AATA 6017 (17 September 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Faheem Nawaz

CASE NUMBER:  1832447

HOME AFFAIRS REFERENCE(S):          BCC2018/3103878

MEMBER:  Frank Russo

DATE AND TIME OF ORAL DECISION: 17 September 2020, 4:10PM (EST)

DATE OF WRITTEN STATEMENT:         17 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 17 September 2020 at 7:35pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – no letter of offer or current Confirmation of Enrolment (CoE) – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 363

Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

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 Home Affairs on 25 October 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

1. The applicant applied for the visa on 17 August 2018. 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.

1. The delegate in this case refused to grant the visa 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 the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

1. The Tribunal gave its decision on the review at the conclusion of the hearing held on 17 September 2020. The following are the reasons for that decision.

1. The applicant appeared before the Tribunal by telephone on 17 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

1. While the issue before the delegate was whether the applicant is a genuine temporary entrant, from the documents before the Tribunal, there is no evidence that the applicant, at the time of this decision, meets the enrolment requirement in cl.500.211(a) for the Student visa.

Enrolment (cl.500.211)

1. 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.

1. ‘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.

1. In addition to his application for review form, the applicant provided the Tribunal with a copy of the delegate’s reasons for decision, as well as a s.359(2) response and an undated statement, a copy of which he had provided to the Department with his visa application. The

Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.

1. The applicant is a 31-year-old national of Pakistan. The visa application under review was in respect of the applicant’s enrolments in an Advanced Diploma of Business and a Bachelor of Business (Business Management).

1. The applicant gave evidence at the hearing that he first arrived in Australia at the end of 2015 for the purpose of first undertaking an English course and then to study a Master of Business Administration (MBA). The applicant gave evidence that he completed the English course (a copy of the certificate is on the Department file). The applicant stated that he did one semester of the MBA, but failed the three units he had enrolled in. He sought advice from an education agent and then enrolled in a Diploma of Accounting and an Advanced Diploma of Business. He stated that his intention was to start at a basic level and then complete a Bachelor degree in Australia and then proceed again to study at the Masters level.

1. The applicant gave evidence that he completed the Diploma of Accounting. He stated that he had almost completed the Advanced Diploma of Business at the time of his visa application, but subsequently did not complete this course or obtain the qualification. The applicant also gave evidence that he did not commence the Bachelor of Business and that he stopped studying after he received the visa refusal decision, stating that he stopped studying at the end of 2018. The applicant confirmed in his evidence that he has not enrolled in any further courses of study or obtained any offers to study.

1. The applicant stated that when he received the visa refusal decision he was stressed and confused about what he should do. He stated that the reason why he stopped studying was because he was stressed, and that after the refusal decision he ‘went into shock’. The Tribunal questioned the applicant as to whether there was any medical or other evidence regarding his claim that he was suffering stress or any other condition, and that this was a reason for his inability to study or obtain an enrolment. The applicant confirmed that he does not have any medical reports to support his claim, but again stated that he was stressed. The applicant stated that he recently went to the hospital because he had a problem with his heart, however no medical evidence has been provided in support of this claim.

1. The Tribunal explained to the applicant that, in order to be granted a Student visa, it is a requirement that he be enrolled in a registered course of study, and that arising from the evidence he had given, he was not enrolled in a course of study and therefore the enrolment requirement had become the determinative issue.

1. The applicant confirmed that he understood that the determinative issue had changed and that the issue in his application for review was now the enrolment requirement. The Tribunal asked the applicant whether he wished to comment or respond to this issue. In response, the applicant stated that when he applied for the visa he was enrolled in the Advanced Diploma of Business and that when the application was refused, he became stressed and discontinued his studies. He stated that he does want to study and that he wants to complete an MBA because they are highly valued, after which he intends to return to his home country and find a good job. The applicant stated that if he knew he could get ‘certainty here’ (in the review before the Tribunal), he ‘would take enrolment’.

1. The applicant confirmed that after the visa application was refused he did not seek advice from his education provider, the Department or an education agent. He stated that after he failed his first semester of the MBA he sought advice from an education agent at that stage.

1. The applicant did not seek an adjournment to obtain enrolment, however the Tribunal has had regard to whether in the circumstances it would be reasonable to adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time to obtain a current enrolment. The Tribunal does not consider that such an adjournment would be reasonable in the current circumstances.

1. There is no evidence that the applicant has taken any steps to obtain enrolment in a course of study since his enrolment in the Bachelor of Business was cancelled, after failing to commence study of this course in January 2019.

1. On 1 April 2020 the applicant was invited by the Tribunal pursuant to s.359(2) of the Act to provide in writing information about his course(s) of study and his entry and stay in Australia as a student. The applicant was also informed that it is a requirement of the Student visa that he be enrolled in a registered course of study.

1. In the applicant’s response, dated 12 April 2020, he confirmed that he did not have a current enrolment in a registered course of study. The applicant also stated, in response to why he was not enrolled in a course from August 2018 to April 2020 (dates provided by the applicant), that he was so stressed because his visa was refused and he had no idea that he could still continue his studies despite the visa refusal. The Tribunal considers this evidence that at least by 12 April 2020, the applicant was aware that his Bridging visa conditions allowed him to obtain another enrolment in a course of study.

1. The hearing invitation sent by the Tribunal on 23 July 2020 requested that the applicant provide, at least 7 days before the hearing, a copy of his current Confirmation of Enrolment (CoE) or other documents that show that he is currently enrolled in a registered course of study. The invitation noted that not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this was not the same criteria or issue considered by the delegate.

1. The Tribunal finds that since the applicant’s application for review made on 5 November 2018, he has had sufficient time and notice to obtain a current CoE and has not done so. On the written evidence he has provided, he was aware as early as April 2020 that he could study while holding a Bridging visa. Despite the lapse of five months, and two notices regarding the enrolment requirement, the applicant has not provided any evidence to indicate that he has attempted to obtain a letter of offer or a CoE. The Tribunal does not give the applicant further time to obtain such documentation.

1. The Tribunal notes that while a copy of the applicant’s enrolment record from the Provider Registration International Student Management System (PRISMS) database is contained on the Tribunal’s file, the enrolment information provided by the applicant is consistent with the information contained in this record. Therefore, the Tribunal has not relied on the information contained in the applicant’s PRISMS enrolment record and instead relies on the information provided by the applicant as to his enrolment status.

1. There is no evidence that the applicant is now enrolled in a course of study or has a current offer of enrolment. The applicant has not provided the Tribunal with a CoE or any other enrolment documents. Rather, the evidence provided by the applicant at hearing is that he is not enrolled in a registered course of study, and has not been enrolled in a course since ceasing the Advanced Diploma of Business at the end of 2018 and his enrolment in the Bachelor of Business was cancelled for non-commencement of studies in January 2019.

1. Accordingly, there is no evidence before the Tribunal that the applicant is now enrolled in or has a current offer of enrolment in any applicable course of study.

1. 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.

1. 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

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

Frank Russo Member