Shah (Migration)

[2018] AATA 5210

Shah (Migration) [2018] AATA 5210 (10 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Varun Shah

CASE NUMBER:  1701761

DIBP REFERENCE(S):  BCC2016/3223745

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          10 July 2018 at 3:13 pm (VIC time)

DATE OF WRITTEN RECORD:                27 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – access to funds – current enrolment in a course – decision under review affirmed     

LEGISLATION

Migration Act 1958
Migration Regulations 1994, 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 12 January 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 10 July 2018 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. MEMBER:  The situation is that you came to Australia on 8 March 2012 holding a student visa.  You have previously held three student visas and this application is for your fourth visa and it was lodged on 28 September 2016.  When you lodged it your intended studies were a Master of Professional Accounting.

4. To be eligible for the grant of a student visa, applicants must satisfy a range of criteria set out in the Regulations.  Your application was refused in January 2017 because the delegate found you did not meet clause 500.214 in that you had not responded to a request to provide evidence of access to funds to show that you met the financial capacity requirements.

5. You have just told the Tribunal, “well, I have provided everything but they did not give time”.  Well, the situation is that the primary decision of which you provided a copy, indicates they sent you a request on 8 November 2016 and the decision was made on 12 January 2017, so it was more than two months after they asked for the information and nothing had been provided.

6. On 1 February 2017 you applied to the Tribunal for review of the decision.  On 7 February we wrote to you acknowledging your application and stating if you wished to provide material or written arguments for the Tribunal to consider you should do so as soon as possible but nothing was received.

7. The role of the Tribunal is to take a fresh look at your application and to make a new decision and so I must consider whether you meet the requirements for the grant of a student visa. 

8. The hearing invitation letter sent over three weeks ago on 14 June 2018 asked you to provide evidence you met the requirements.  It requested specific information, including evidence of financial capacity, that you had access to sufficient funds, which was the reason your application was initially refused.  It also asked you to provide evidence of current enrolment.

9. We asked you to provide a written response at least 7 days before today’s hearing.  You did not do that, but you have turned up to today's hearing with a bunch of documents.  And I say to you so what are you studying and you say, “well, I am not currently enrolled, I am not studying, I have not studied since mid-2015”.

10. As I say, the role of the Tribunal is to conduct a fresh look and consider whether you are eligible for a visa.  While your visa was refused because you did not provide evidence you had access to finance you have today told the Tribunal you are not enrolled in a course.  Enrolment in a course is a prerequisite for the grant of a visa.

11. It is only when someone is enrolled is it possible to work out a range of other evidence required such as finances that comprises the fees for the course you want to do, living expenses for the duration of your intended studies and how long do you need overseas student health cover for, which is for the duration of your stay in Australia et cetera et cetera.

12. So as you are not currently enrolled you do not meet clause 500.211, which is a prerequisite for the grant of a student visa.

13. As you do not satisfy 500.211 and are not eligible for the grant of a visa.  The Tribunal does not intend to go on and consider whether you satisfy financial requirements which is not possible without you being enrolled in a prospecgtive course.

14. As you do not meet clause 500.211 it is the decision of this Tribunal to affirm the decision under review.  And the decision was made 3.12 pm on this 10 July 2018.

    DECISION

15. The Tribunal affirms the decision under review.

    Tim Connellan
    Member