Riaz (Migration)

[2018] AATA 599

Riaz (Migration) [2018] AATA 599 (8 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sheryar Riaz

CASE NUMBER:  1700151

DIBP REFERENCE(S):  BCC2016/3012025

MEMBER:Wendy Banfield

DATE:8 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 08 March 2018 at 8:00pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Requirement to be enrolled in an approved course of study – Applicant not enrolled at time of decision

LEGISLATION
Education Services for Overseas Students Act 2000, Div 3 Pt 2
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.111, 500.211(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 15 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 10 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.500.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not enrolled in an approved course of study.

   Background

4. The applicant is a citizen of Pakistan and is currently 26 years old. He came to Australia in 2013 with a declared intention of studying Accounting. According to the applicant he found the course difficult so he enrolled in a Diploma of Marketing which was completed in 2014. The applicant was then enrolled in a Bachelor of Accounting and Bachelor of Business at different times but due to family reasons, was unable to pay the fees and his enrolments were cancelled.

5. The applicant said he had to wait until everything settled down, however, after his enrolment was cancelled his visa also expired. He enrolled in a Diploma of Management and then a Bachelor of Accounting based on advice from others. The applicant advised the Tribunal he was still intending to take a Bachelor of Business and asked for an opportunity to do so.

6. On 5 March 2018 the applicant submitted a letter of offer from Group Colleges Australia for a proposed Bachelor of Business from 7 May 2018 to 23 April 2021.

7. The applicant appeared before the Tribunal on 1 March 2018 to give evidence and present arguments.

8. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 meets the requirement of being enrolled in a course of study.

11. 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.

12. ‘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.

13. The applicant confirmed he was enrolled in a Bachelor of Business in August 2016, but said his visa expired in September 2016. It was claimed this was also the time when there was a family crisis affecting his studies. The Tribunal advised the applicant that he was still not enrolled in a course of study as required for the grant of a student visa and that this was the same reason the Department had refused the visa. The applicant claimed he had not known whether he was meant to continue studying after his visa was refused and also that no colleges would enrol him. He said if he were granted time after the hearing, he could obtain enrolment in a good college. The applicant then said he was living in Canberra and would enrol in the University of Canberra.

14. The applicant said he had not enrolled before the hearing as he had been overseas and only returned in February. The applicant asked for time to get either a letter of offer or a COE. The Tribunal agreed to the request but advised the applicant it would not guarantee that he met the criteria for the grant of the visa but anything else he submitted would be taken into account.

15. The applicant provided a letter of offer from Group Colleges Australia to study a Bachelor of Business Majoring in Management. The course is to commence on 7 May 2018 and be completed on 23 April 2021. The Tribunal has considered the applicant’s circumstances and his reasons for not being enrolled since his visa was refused. The current letter of offer has also been taken into account but the Tribunal finds that regardless, the applicant is not enrolled and is therefore not eligible for the grant of a student visa. Based on the information from Group Colleges Australia offer letter the applicant would not be able to commence studying until 7 May 2018.

16. 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.

17. 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

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

    Wendy Banfield
    Member