Polat (Migration)

[2020] AATA 2395

Polat (Migration) [2020] AATA 2395 (26 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Turan Polat
Mrs Pinar Polat

CASE NUMBER:  1804239

DIBP REFERENCE(S):  BCC2017/4326697

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         26 May 2020 at 10:01 am (VIC time)

DATE OF WRITTEN RECORD:                17 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 17 June 2020 at 10:55am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no current enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cll 500.211, 500.212

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 1 February 2018 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 26 May 2020 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 1804239, in relation to an application for review brought by Mr Turan Polat and Ms Pinar Polat.

4. The first applicant, Mr Turan Polat, is a citizen of Switzerland.  The second applicant Pinar Polat is a citizen of Turkey and the wife of the first applicant.  They seek review of decisions made by a delegate of the Minister, refusing to grant them student visas.

5. The applicants applied for their visas on 17 November 2017.  Their visa applications were refused by the delegate on 1 February 2018.  The applicants lodged their review application with the tribunal on 19 February 2018.

6. If granted, a student visa permits a non-citizen to enter and remain in Australia to study full-time on a temporary basis. An applicant’s family members may also join the application, so that they too are issued with visas permitting them to stay in Australia for the duration of the main applicant’s study. The specific type of visa that the applicants applied for is classified under the Migration Regulations as a student temporary class TU subclass 500 visa.

7. In this case there are two applicants.  The first applicant is the main applicant.  He seeks a student visa so that he can reside in Australia while undertaking a course of study.  For the visa to be granted, he must meet the primary criteria set out in Part 500 of Schedule 2 of the Regulations.

8. The Second applicant seeks a student visa as a family member of the first applicant.  The grant of a student visa to a family member of the main applicant is contingent on both the main applicant meeting the primary criteria, and the family member meeting the secondary criteria.  For a family member to have any prospect of a successful visa outcome, the main applicant first needs to receive a favourable outcome in relation to their application.

9. The student visas were refused in this case initially because the delegate found that the first applicant did not satisfy the primary criteria contained in clause 500.212.  The delegate was not satisfied that he was a genuine applicant for entry and stay as a student.  The delegate’s reasons are set out in a Decision Record.  That Decision Record was provided to the applicants when they were notified that their visa applications had been refused.

10. The applicants also provided a copy of that Decision Record to the tribunal when they lodged their review application.  By lodging the review application, the applicants contend that the delegate’s decision refusing the visas, is neither the correct, nor the preferable outcome in this case.

11. The following issues arise for consideration and determination by the tribunal now.

12. First, whether the first applicant is currently enrolled in a course of study as required by clause 500.211.  Second, whether the applicant is a genuine applicant for entry and stay as a student in Australia as required by clause 500.212.

13. The tribunal convened a hearing to consider the merits of this application on 26 May 2020.  The first applicant participated at the hearing by phone to give evidence and present arguments.  The second applicant did not participate at the hearing.  The applicant was assisted by his agent, Mr Ramazan Altintas, who also participated at the hearing by phone. The second applicant attended the hearing with the first applicant, but did not give evidence.

14. The tribunal received a number of documents filed by the applicants prior to the hearing.  In particular, there was a typewritten statement prepared by the first applicant, filed on 25 May which set out his reasons and arguments as to why he believed that the delegate’s original decision was wrong.  There were a number of other documents filed on behalf of the applicants relating to his financial, education and employment history here and abroad.

15. Clause 500.211 requires that a student visa application be founded on evidence of the first applicant being enrolled in a course of study.  The enrolment must be current at the time the tribunal makes its decision.  While the determinative issue before the delegate was whether the first applicant met the genuine temporary entrant criterion under clause 500.212, it became clear at today’s hearing that he did not meet the enrolment criteria.

    At the commencement of the hearing, the tribunal enquired of the first applicant as to whether he was currently enrolled.  The applicant stated that he was not currently enrolled in a registered course of study.  When the tribunal enquired as to why he was not currently enrolled, the first applicant stated that he was last enrolled when he completed his English course in June 2018.  The applicant also stated that his wife became pregnant and it was a difficult pregnancy, and that he had to help her at home, which is why he found it difficult to enrol after that English course.

16. The tribunal notes that the applicant’s evidence given at the tribunal hearing is entirely consistent with what is contained in the International Students Database maintained by the Australian Government.  The tribunal did not draw the applicant’s attention to that information contained in the database, because the evidence he gave reflected what was contained in it.  And that information on the database indicates that he successfully completed an English course in June 2018.  The database also indicates that he has not enrolled in any registered course since that time.

17. The importance of producing evidence of a current enrolment to the tribunal for the purposes of today’s hearing, was communicated to the applicant in writing on 11 May 2020.  That written communication from the tribunal was the letter addressed to the applicants inviting them to this hearing today.  The first applicant confirmed in evidence that he had received and read that letter.  The letter requested that the applicants provide a copy of a Confirmation of Enrolment or other documents showing that he was currently enrolled, as required by clause 500.211, at least seven days before the hearing.  There is no such documentation currently before the tribunal and that is because, on the first applicant’s own evidence, he is not currently enrolled.

18. In the course of the hearing, the tribunal explained to the first applicant that the law is clear.  If he is not currently enrolled in a registered course of study at the time the tribunal considers the case and makes a decision, he cannot be granted a student visa.  In the course of his reply to that proposition, the first applicant repeated again the difficulties that his wife had with her pregnancy and his need for him to stay home and help her.

19. He also refered to having, about a fortnight ago, applied for enrolment in a Network IT Security course. The applicant stated that he had been refused his application for enrolment in that course because the course provider told him that he had been previously refused his student visa application.

20. The tribunal notes that the first applicant also appears to have been under some misapprehension as to the imperative need for him to provide evidence of a current enrolment today.

21. Regrettably, none of these are satisfactory reasons in relation to the tribunal’s consideration of his case as to whether he meets the enrolment criteria now.  There is no evidence of a current enrolment before the tribunal by the applicant’s own admission.  The tribunal cannot make a favourable determination without evidence of a current enrolment.  The tribunal considers that he has had adequate time to make arrangements for organising such evidence to produce to the tribunal today. He has had almost approximately two years since the original visa refusal, to organise it in that regard.  And he was given specific written notice by the tribunal on 11 May 2020 of the need for him to produce evidence of a current enrolment.

22. The tribunal notes that the applicants have not requested any postponement of today’s hearing.  Accordingly, the tribunal will proceed to make a determination in relation to this matter based on the evidence before it.

23. The first applicant does not meet the regulatory requirements for the grant of a student visa because the tribunal is not satisfied that he meets any of the criteria contained in clause 500.211.  Because the first applicant fails to meet the primary criteria, the second applicant also fails to meet the criteria for the grant of a student visa.

24. The time now is 26 May 2020.  The tribunal affirms the decisions not to grant the applicants’ student temporary class TU subclass 500 visas.

25. The tribunal affirms the decision not to grant the applicants’ student temporary class TU subclass 500 visas.

    DECISION

26. The Tribunal affirms the decisions under review.

    Dr Jason Harkess
    Member