Naz (Migration)

[2019] AATA 5336

Naz (Migration) [2019] AATA 5336 (1 July 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Gul Naz

CASE NUMBER:  1703189

DIBP REFERENCE(S):  BCC2016/3057246

MEMBER:  Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         1 July 2019 at 1:55 pm (VIC time)

DATE OF WRITTEN RECORD:                12 August 2019

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 12 August 2019 at 11:41am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – enrolment status – evidence of enrolment at time of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.214

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 February 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 1 July 2019 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. This is an oral statement of the decision and reasons of the Administrative Appeals Tribunal in case number 1703189, in relation to an application for review brought by Ms Gul Naz, the applicant. The applicant is a citizen of Pakistan. She seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 February 2017, refusing to grant her a student visa.

4. The applicant applied for this visa on 14 September 2016. The Regulations classify this type of visa as a Student (Temporary) (Class TU) (subclass 500) visa. Such visas are issued under the general power to issue visas conferred on the Minister or the delegate, by the operation of section 65 of the Migration Act. If granted, a student visa permits a non-Australian citizen to enter and remain in Australia to study full-time on a temporary basis.

5. In this case, there is only one applicant. It is she who must meet the primary criteria set out in the Regulations, relating to the grant of a visa. The student visa was refused in this case, because the delegate found that the applicant did not satisfy the requirements in clause 500.214 of schedule 2 of the Regulations. The delegate was not satisfied that she had genuine access to funds to meet her costs and expenses for the duration of her extended stay in Australia. The delegate’s reasons are set out in the decision record, a copy of which was provided to the tribunal by the applicant when she lodged her application for review on 27 February 2017.

6. The applicant appeared before the tribunal on 1 July 2019 to give evidence and present arguments by telephone link with Western Australia. While the determinative issue before the delegate was whether the applicant met the criteria under clause 500.214, it became clear at the outset of today’s hearing that she did not meet other criteria that must be satisfied for the grant of a student visa.

7. Clause 500.211 of the Regulations requires the applicant to be enrolled in a registered course of study at the time the tribunal makes its decision. At the commencement of today’s hearing, the tribunal enquired of the applicant if she is currently enrolled in a registered course of study. In oral evidence, the applicant stated that she was not. The applicant was not able to produce any documentary evidence that demonstrated a current enrolment and that is because, as stated, she admitted that she was not currently enrolled.

8. It appears, through her submissions and her evidence, that she effectively stated that she did not have enough time to organise the documentation, including most probably the documentation that might have been able to satisfy clause 500.214, being her financial documentation and the tribunal has taken those comments as essentially a request for an adjournment. That application for an adjournment has been refused on the basis that the applicant has had an adequate opportunity to arrange her affairs and prosecute her own application for review. It has been more than two years since the original refusal was made.

9. The applicant conceded in evidence that she received the letter inviting her to this hearing some weeks ago and that letter made it clear that she needed to provide documents

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demonstrating that she was enrolled in a registered course of study at the time the tribunal came to consider her case.

1. Accordingly, having refused the adjournment, the tribunal must now proceed to determine the matter on the basis of the evidence before it. There is no current enrolment. As such, the applicant fails to satisfy the criterion contained in clause 500.211. In these circumstances, the question of whether the applicant meets the criteria under clause 500.211 has become determinative for the purposes of the outcome of the case now before the tribunal.

2. If the applicant does not meet the criteria under clause 500.211, there is no point in the tribunal proceeding to consider whether she has evidence of genuine access to funds under clause 500.214. In any event, the tribunal has considered that issue as well and there is no documentation satisfying the criterion under clause 500.214 as well.

3. The applicant, in conclusion, does not meet the regulatory requirements for the grant of a student visa.

   DECISION

4. It is now 1.55 pm on Monday, 1 July 2019. In case number 1703189, the tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

   Dr Jason Harkess
   Member

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