SADAT (Migration)

[2018] AATA 4873

SADAT (Migration) [2018] AATA 4873 (24 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Md Arabi SADAT

CASE NUMBER:  1715495

DIBP REFERENCE(S):  2040581407 CLF2015/32518

MEMBER:Mara Moustafine

DATE:24 October 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 24 October 2018 at 1:55pm

CATCHWORDS
MIGRATION – Federal Circuit Court remittal –Student (Temporary) (Class TU) visa – dependent child of third party’s visa – Subclass 573 (Higher Education Visa) – relationship breakdown with third party visa holder and mother – no enrolment in registered course – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth) Schedule 2 cls 573.222, 573.311, 573.312, 573.322

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 21 July 2015 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The application for a Student visa was lodged on 4 June 2015 by a third party to undertake study in Australia, with the applicant, then aged 10 years old, and his mother as dependent applicants. The third party’s visa application was refused for reasons unrelated to this case, and as a result the applicant’s student visa was also refused. Meanwhile, the applicant’s relationship with his mother broke down and he came to live, on a permanent basis, with his father.

3. No appeal was lodged on the applicant’s behalf by the third party. Instead the applicant lodged his own appeal to the Tribunal on 11 August 2015.  

4. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575), or whether the applicant has the support of the relevant Minister (Subclass 576).

5. In order for the applicant to be granted a visa, he had to satisfy, amongst other things, the requirements of cl.573.322 of the Migration Regulations 1994 – that is, he had to be a member of the family unit of a person who satisfied the primary criteria, in particular the original primary Student visa applicant.

6. In reviewing the delegate’s decision, the Tribunal, differently constituted, found that the applicant was not a dependent child of the third party and hence not a member of his family and affirmed the decision of the Department. However, on appeal, the Federal Circuit Court remitted the decision to the Tribunal for reconsideration.

7. The applicant was represented in relation to the review by his father.

8. The applicant appeared before the Tribunal on 24 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from his father. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue before the delegate was whether the applicant met the criterion in cl.572.322. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

11. With limited exceptions, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application. This requirement does not apply to certain ‘eligible higher degree students’, ‘eligible university exchange students’, and ‘eligible non-award students’. There is no evidence before the Tribunal that that the applicant is an eligible higher degree student as defined in cl.573.111 and 574.111 respectively, or an eligible university exchange student or eligible non-award student for the purposes of Subclass 575 as defined in cl.575.111.

12. On 25 September 2018 the Tribunal wrote to the applicant in accordance with s.359A of the Act, inviting him to comment on or respond to certain information which the Tribunal considered would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review.

13. The particulars of the information were that:

    ·     The application for the Student visa under review was lodged on 4 June 2015 by a third party with the applicant and his mother as his dependents;

    ·     Information before the Tribunal indicates that neither the third party nor the applicant’s mother are enrolled in any registered course or holds a current student visa; and

    ·     Departmental records indicate that the third party and the applicant’s mother were granted permanent visas in October 2017.

14. The Tribunal noted that this information was relevant to the review because Clause 573.222 of the Migration Regulations states that at the time of decision, to be eligible for the grant of a student visa an applicant must be enrolled in a full-time registered course of study that is registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). There is no evidence that either the third party or his mother was currently studying or enrolled in a registered course. If neither the third party nor the applicant’s mother is enrolled, it may lead the Tribunal to find that they do not meet a criterion for the grant of a Subclass 573 visa and affirm the decision under review. In these circumstances, the Tribunal might then find that the applicant was not the member of the family unit of a relevant person as required by cl.573.311 or 573.312.

15. The applicant responded to the Tribunal by email on 8 October 2018 as follows:

    Currently I my mother has restraining orders. We can not meet or communicate to each other. I have no way to gather information either she was enrolled by then or not. Is it possible that you can contact her on behalf of me please?

16. At hearing the Tribunal discussed with the applicant that it would not be relevant for the Tribunal to discuss with the applicant’s mother whether or not she was previously enrolled as the Tribunal was required to assess the situation at the time of its decision.

17. There is no evidence before the Tribunal that either the third party or the applicant’s mother are now enrolled in, or hold a current offer of enrolment in any applicable course of study, as required for the grant of a Student visa. In these circumstances, the Tribunal finds that the applicant is not a member of the family unit of a relevant person as required by cl.573.311 or 573.312.

18. Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU. The applicant is neither supported by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian.

19. For these reasons, the decision under review must be affirmed.

    DECISION

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

    Mara Moustafine
    Member