SAVALIYA (Migration)

[2018] AATA 3115

SAVALIYA (Migration) [2018] AATA 3115 (26 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rajesh SAVALIYA
Mrs Bhavnaben Manshukhbhai GADHIYA

CASE NUMBER:  1708859

HOME AFFAIRS REFERENCE(S):           BCC2016/3173223

MEMBER:Penelope Hunter

DATE:26 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 26 July 2018 at 3:25pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Course enrolment – Completed other courses in Australia – Delay in arranging for a suitable course enrolment – Decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth),r 1.03 Schedule 2 cls 500.111, 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 Immigration and Border Protection on 4 April 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 24 September 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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 had not provided evidence that he was enrolled in a course of study at the time of the decision.

4. The applicants appeared before the Tribunal on 25 July 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 satisfies cl. 500.211.

7. 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.

8. ‘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.

9. The applicant applied for the visa in order to undertake study in a Bachelor of Information Technology at Federation University. He set out in his visa application that he had one subject left to complete the degree, and after he graduated he wished to join his brother’s business in his home country.

10. In response to a request from the Department for evidence of his enrolment, the applicant wrote by email on 4 March 2017, t that he was not enrolled, having completed his course, and that he was proposing to apply for a subclass 485 Graduate visa.

11. On 4 April 2017, the delegate refused the visa.

12. The applicant has provided to the Tribunal evidence that he had difficulty lodging an application for a subclass 485 visa online, that this was acknowledged by the Department and that he had to lodge a paper application. As discussed with the applicant at the hearing, the merits of his subclass 485 visa application is not a matter for review by the Tribunal on this application.

13. The Tribunal has considered the applicant’s submissions to the Tribunal that he then determined to do a Master’s degree but that it was too late to get admission because it was after February and the university semester had already started. The applicant  has claimed that he had a dream of getting a Masters degree or doing a professional year in information technology.  

14. It is accepted that the applicant has completed the course at Flinders University, the Bachelor of IT, which was the initial course he wished to undertake when he applied for the visa. It is also accepted that the applicant has enrolled and completed other courses of study in Australia.

15. It is accepted that the applicant had in the past obtained an offer of enrolment, from the Performance Education Group, however with a 3 April 2017 intake, the time for acceptance of this offer has passed. The applicant confirmed at the hearing, and the Tribunal finds,  that he did not proceed with this offer.

16. Pursuant to the provisions of s.359AA the Tribunal put to the applicant the information contained in his Provider Registration and International Student Management System Record (PRISMS). His PRISMS record did not document any enrolments for the applicant since 17 February 2017. The applicant chose to comment immediately and did not dispute that he had not been enrolled in a course of study since February 2017.

17. The applicant claimed that he had done some studies English but this was not a registered course. In response to questions from the Tribunal he gave evidence that he was not studying and did not have an enrolment or an offer of enrolment in a course of study. He claimed that he has been unable to obtain enrolment because he did not have a student visa. He claimed to have applied for courses with several institutions such as the Holmes University and Flinders University but that he had not been accepted to study. He submitted that if his visa application was successful he could then obtain enrolment.

18. The Tribunal explained to the applicant that his enrolment was a primary criteria that needed to be satisfied at the time of decision. The applicant suggested that he was waiting to hear back from some other universities. The Tribunal considered and refused to delay making a decision, and grant the applicant further time, because it was considered that the applicant had already had sufficient time to arrange enrolment. Particularly, the application for review had been received on 22 April 2017 and the applicant had over 15 months to arrange suitable enrolment.  With his invitation to attend the Tribunal hearing dated 2 July 2018, the applicant was also requested to provide a copy of his current Certificate of Enrolment (COE) or other documents that show he was currently enrolled in a course of study as defined in cl. 500.111 of the regulations, as was required for the grant of a student visa.

19. As discussed with the applicant at the hearing, in circumstances where the applicant is no longer studying, and is not enrolled in a course of study, he does not meet the criteria for the grant of the visa. It is not something that can be satisfied after the grant of the visa.

20. 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 of Schedule 2 to the Regulations is not met.

21. 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.

22. As the Tribunal has found that the applicant in this case has not satisfied cl.570.211, it follows that the second named applicant, who have applied as a member of the applicant’s family unit, cannot be granted a visa.

23. Accordingly, the decision under review must be affirmed.

    DECISION

24. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Penelope Hunter
    Member