Shahid (Migration)

[2020] AATA 4568

Shahid (Migration) [2020] AATA 4568 (18 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zain Shahid

CASE NUMBER:  1831295

DIBP REFERENCE(S):  BCC2018/3205066

MEMBER:Peter Newton

DATE AND TIME OF

ORAL DECISION AND REASONS:         18 August 2020 at 1:42 pm (NSW time)

DATE OF WRITTEN RECORD:                23 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 23 October 2020 at 3.45pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study history – previous completed study – father’s health and applicant’s travel to home country – not enrolled in registered course at time of review decision – decision under review affirmed

LEGISLATION

Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 October 2018 (Department’s Decision) to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Act).

2. At the hearing on 18 August 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. The applicant applied for the visa on 24 August 2018.  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.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of schedule 2 to the Migration Regulations 1994 (Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia. 

5. The applicant appeared before the tribunal on 18 August 2020 by telephone to give evidence and present arguments.  The Tribunal exercised its discretion to hold the hearing by telephone.  The hearing was held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold the hearing by telephone, having regard to the nature of the matter and the individual circumstances of the applicant.  The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

6. The Tribunal is satisfied that the applicant heard and understood the outline given to him at the commencement of the hearing, as to how the hearing would proceed, which included the statement that in order to be eligible for a student visa the applicant must be enrolled in an approved course of study at the time of decision.  The Tribunal is satisfied that the applicant heard and understood the questions asked during the hearing which he answered.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. Prior to the hearing the applicant submitted to the Tribunal a Request for Student Visa Information (Request) and a Response to Hearing Invitation signed electronically by the applicant and dated 20 July 2020 (Response). 

8. The Tribunal has read all the documents provided by the applicant to the Tribunal and considered all the applicant’s evidence and submissions given and made at the hearing on 18 August 2020. 

9. The criterion for a subclass 500 (student) visa are set out in part 500 of Schedule 2 to the Regulations.  The primary criteria in clause 500.211 to clause 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 is enrolled in a registered course of study. 

10. Clause 500.211 relevantly requires that at the time of decision the applicant is enrolled in a registered course of study:  clause 500.211(a).  The applicant does not claim to meet any of the alternative criteria in clause 500.211.

11. “Course of study” is relevantly defined in clause 500.111 of the Regulations as a “full-time registered course”.  “Registered course” is defined in rule 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.

12. During the hearing the applicant acknowledged he received from the tribunal the invitation to Provide Information dated 30 March 2020.  The Invitation to Provide Information states, so far as is relevant:

    “…

    As you applied for the visa based on undertaking a course of study in Australia, it is a requirement of the visa for you to be: 

    ·            enrolled in a registered course of study; and

    ·           a genuine applicant for entry and stay as a student.”

13. The Invitation to Provide Information requested the applicant to complete and submit an online Request for Student Visa Information form.  It states:

    “Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student.  Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below.  The information requested may be given by completing the online form and clicking (submit) on the Declaration page.

    …”

14. As indicated, during the hearing the applicant acknowledged that he received the Invitation to Provide Information.  The applicant completed and submitted online the Request for Student Visa Information (Request).  The Request contains the following information in relation to the applicant’s enrolment and study in Australia: 

    “Does the Main Applicant have a current confirmation of
    enrolment (CoE) in a registered course of study? *

No

Not being enrolled in a registered course of study may be a reason, or part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issued considered by the primary decision maker.”

1. During the hearing the applicant accepted that on 15 July 2020 he received from the Tribunal an Invitation to Attend a Hearing in the Tribunal by telephone on 18 August 2020.  The Invitation to Attend a Hearing states:

   “…

   What you should do on receipt of this letter

   Please read and complete the enclosed ‘Response to hearing invitation’ form and return it to the AAT within seven days of receiving this letter.

   Please provide at least seven days before the hearing all documents you intend to rely on to establish that you meet the criteria for the visa.  The decision made by the Department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing.  Any documents or written arguments sent to us should be in English, and if not, then accompanied by a translation from a NAATI accredited translator.

   In addition, please provide the following information at least seven days before the hearing date so the decision can be made as quickly as possible:

   1.  A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in CL500.111 and as required by CL500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.

   …”

2. As stated, the applicant acknowledged he received the Invitation to Attend a Hearing from the Tribunal dated 15 July 2020.  The applicant provided to the Tribunal the Response electronically signed by the applicant and dated 20 July 2020.

3. I am satisfied that the applicant received the Invitation to Provide Information from the Tribunal to the applicant dated 30 March 2020 and the applicant received the Invitation to attend a Hearing for today (18 August 2020).  The applicant has completed and provided to the tribunal the Request. 

4. The Invitation to Provide Information, the Invitation to Attend a Hearing and the Request give the applicant notice that enrolment in a registered course of study is also a determinative issue on the application to review the Department’s Decision.  Accordingly, the applicant was on notice that enrolment was also a determinative issue on review, and it is open to the Tribunal to affirm the Department’s Decision on the failure of the applicant to be enrolled in a registered course of study.

5. The Request discloses that the applicant first arrived in Australia on 5 April 2011.  The Request discloses that since first arriving in Australia the applicant has completed the following courses of study at the institutions shown: 

   a.Certificate IV in Business at BTIA during the period May 2011 to March 2012;

   b.Diploma of Business at BTIA during the period April 2012 to March 2013.

6. The applicant provided to the Tribunal the Department’s Decision with this application for review.  The Department’s Decision records:

   “You lodged this Student application on 24/08/2018, on the same day as the cessation of your Student visa (subclass 500).  You are proposing to study a Diploma of Leadership and Management and Advanced Diploma of Leadership and Management, which commenced on 03/09/2018, and are due for completion on 29/03/2020 …”

7. During the hearing the applicant stated that he obtained enrolment in a Diploma of Leadership and Management and Advanced Diploma of Leadership and Management course.  He said that when he received the Department’s Decision, he asked the education provider to cancel his enrolment.  During the hearing the applicant said that over the past three years he could not focus on studies.  He said that his father has been ill.  He said his father had a heart attack in 2018 and another heart attack in 2019.  He said that when he received the Department’s Decision refusing his application for a student visa he could not focus on his studies.  He said he was upset.  I understood the applicant was upset over his father’s illness and the Department’s Decision.  During the hearing the applicant indicated that he returned to his home country to visit his father.  In the Request the applicant disclosed that in 2018 he travelled to his home country for around three months due to his father’s sickness. 

8. The applicant said that his father’s condition has improved.  He said that his father had stents inserted around two months ago. 

9. There is no evidence that the Department’s Decision refusing the applicant’s application for a student visa and the applicant’s concerns over his father’s health have prevented or interfered with the applicant’s ability to obtain enrolment in a registered course of study. 

10. Having regard to the evidence referred to above the Tribunal is satisfied that at the time of this decision, the applicant is not enrolled in a registered course of study and accordingly clause 500.211 is not met. 

11. 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

12. The Tribunal affirms the decision under review.

    Peter Newton
    Member