SHAIK (Migration)

[2019] AATA 4724

SHAIK (Migration) [2019] AATA 4724 (18 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr FAYYAZ AHMED SHAIK

CASE NUMBER:  1714795

HOME AFFAIRS REFERENCE(S):           BCC2017/1029076

MEMBER:Wendy Banfield

DATE:18 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 July 2019 at 11:00am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary stay – enrolment cancelled for non-payment of fees – late response to s 359A letter – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.211(a), 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 22 June 2017 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 15 March 2017. 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.

   Background

3. The applicant is a citizen of India and is currently 27 years old. He came to Australia in 2013 to study a Bachelor of Business. After commencing his studies the applicant discontinued his Bachelor degree and enrolled in Diploma level courses. At the time of the hearing, the applicant was enrolled in an Advanced Diploma of Business which was later cancelled.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because it was determined the genuine temporary entrant criteria had not been met.

5. The applicant appeared before the Tribunal on 8 January 2019 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 is enrolled in an approved course of study as required for the grant of a Student Visa.

9. 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.

10. ‘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.

11. On 6 December 2018 the applicant was invited to attend a hearing scheduled for 8 January 2019. The invitation asked the applicant to provide a copy of a current Confirmation of Enrolment (COE) or other documents that show he is currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994. The applicant was advised that a COE is required for the grant of a student visa. At the Tribunal hearing on 8 January 2019 the applicant was advised that in order to be eligible for a student visa, he must be enrolled in an approved course of study at the time of decision. At the time of the hearing, the applicant was enrolled in a course of study.

    After the hearing but before the decision was made in the applicant’s case, the Tribunal checked the applicant’s enrolment status and found that his previous enrolment in a course of study had been cancelled for non-payment of fees. Therefore, on 3 July 2019 the Tribunal wrote to the applicant inviting him to comment on or respond to the information.

    359A letter

12. The Tribunal advised the applicant as follows:

    According to the Provider Registration and International Student Management System (PRISMS) records available to the Tribunal, you are not currently enrolled in a course of study. At the time of the hearing in your case you were enrolled in an Advanced Diploma of Business that was to start on 7 January 2019 and finish on 5 January 2020. However, according to PRISMS your enrolment was cancelled due to non-payment of fees.

    This information is relevant to the review because the Migration Regulations state 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. PRISMS indicates you are not enrolled in a course of study and the Certificate of Enrolment you provided is no longer current.

    If the Tribunal relies on the information indicating you are not enrolled to study in making a decision, it may lead to the decision under review being affirmed.

    Since you are no longer studying, you may wish to withdraw your application for review.

13. The applicant was advised he was required to respond by 17 July 2019 but if he was unable to respond by that date, the applicant could request an extension of time to provide his comments or response. The 359A letter stated that any such request had to be made before 17 July 2019. On 18 July 2019 the applicant contacted the Tribunal through his representative as follows:

    The student requires an extension for the date as he is awaiting a response from the college that he is studying in.

    The student has resolved the matter with his education institute and is awaiting his COE from them. He will be receiving his COE by the end of this week.

    It is a humble request to kindly grant the student an extension to provide his COE.

14. The Tribunal considered the applicant’s communication received on 18 July 2019. The applicant did not request an extension of time prior to the due date of 17 July 2019, he did not adequately explain why he needed additional time to respond, why the course he had previously been enrolled in was cancelled or why he had not been enrolled or studying for six months. Although the applicant claimed to have “resolved the matter with his education institute…” there was no explanation about what this meant.

15. The Tribunal is of the view the applicant should have requested an extension of time and provided comments on the information put to him prior to the due date but he did not do so.

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