Sifath (Migration)

[2019] AATA 5356

Sifath (Migration) [2019] AATA 5356 (9 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammad Abu Sifath

CASE NUMBER:  1728650

DIBP REFERENCE(S):  BCC2017/3144744

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:        9 May 2019 at 9:57 am (VIC time)

DATE OF WRITTEN RECORD:               22 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 22 July 2019 at 1:34pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – evidence of enrolment in full-time registered course not provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 1 November 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 9 May 2019 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. This is an oral decision in case number 1728650. The applicant is Mr Mohammad Abu Sifath. This is an application for a review of a decision made by a delegate of the Minister for Immigration on 1 November 2017. The decision was to refuse to grant Mr Sifath a student temporary class TU visa under section 65 of the Migration Act. Mr Sifath applied for the visa on 30 August 2017 to undertake study in Australia.

4. At the time that the visa application was lodged, student visas contained two sub‑classes, sub-class 500 and sub-class 590. This application relates to a sub‑class 500 student visa and not a sub-class 590 student guardian visa. The delegate refused to grant the visa on the basis that Mr Sifath did not satisfy the requirements of clause 500.212 of the Migration Regulations. The delegate wasn't satisfied that Mr Sifath was a genuine student who intended to stay temporarily in Australia.

5. Mr Sifath appeared before the Tribunal to give evidence and to present arguments. The hearing was conducted with the assistance of an interpreter in the Bengali language. While the issue before the delegate was whether Mr Sifath was a genuine temporary entrant, the issue before the Tribunal is whether he was enrolled in a course at the time of the hearing.  The criteria for a sub-class 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. The primary criteria must be satisfied by at least one applicant.

6. The issue in the present case is whether Mr Sifath is enrolled in a course of study as required for the grant of a student visa. Clause 500.211 relevantly requires that at the time of this decision Mr Sifath be enrolled in a course of study. 'Course of study' is relevantly defined in clause 500.111 of the regulations as a full-time registered course. 'Registered course' is defined as a course of education or training provided by an institution or a body or a person registered under the Education Services for Overseas Students Act to provide such courses to overseas students.

7. On 23 April 2019 a written invitation to attend today's hearing was sent to Mr Sifath.  In that invitation Mr Sifath was requested to provide evidence of enrolment in a full-time registered course at least seven days before today's hearing. Such evidence was not provided. At the hearing today, Mr Sifath was again requested to provide evidence of current enrolment to the Tribunal. Mr Sifath was not able to do so. In Mr Sifath's sworn evidence before the Tribunal Mr Sifath candidly acknowledged that he was last enrolled in a course of study in November 2018. Mr Sifath confirmed that he is not currently enrolled in any course of study in Australia. The Tribunal acknowledges those candid admissions. Accordingly, there is no evidence before me that Mr Sifath is enrolled in any course of study in Australia. Therefore the Tribunal is not satisfied that at the time of this decision Mr Sifath is enrolled in a course of study and therefore clause 500.211 is not met.

8. Given the above findings, the Tribunal finds that the criteria for the grant of a sub‑class 500 student visa are not met. As confirmed above, the hearing does not relate to a sub-class 590 student guardian via. For these reasons, the Tribunal finds that the decision under review should be affirmed. The Tribunal affirms the decision not to grant Mr Sifath a student temporary class TU visa. The decision is made at 10.06 am on 9 May 2019.

   DECISION

9. The Tribunal affirms the decision under review.

   Vanessa Plain
   Member