SIMON (Migration)

[2019] AATA 2068

SIMON (Migration) [2019] AATA 2068 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RINOY SIMON

CASE NUMBER:  1716067

HOME AFFAIRS REFERENCE(S):           BCC2017/1056183

MEMBER:Wendy Banfield

DATE:26 February 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 26 February 2019 at 1:22pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – adjournment request declined – not enrolled in a course of study at time of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 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 July 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 17 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.

3. 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.

   Background

4. The applicant is a citizen of India and is currently 26 years old. He came to Australia on 30 January 2015 to study a Master of Business having obtained a Bachelor of Commerce in his home country. He was granted a Student Visa in order to study in the Higher Education Sector. The applicant discontinued his Masters course and in 2017 he enrolled in a Bachelor of Early Childhood Education. However, at the time of the hearing, the applicant’s enrolment had been cancelled for non-payment of fees.

5. The applicant appeared before the Tribunal on 13 February 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.

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 10 January 2019 the applicant was invited to attend a hearing scheduled for 13 February. 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. The applicant did not submit a COE as requested prior to the hearing.

12. At the Tribunal hearing on 13 February 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. The applicant did not provide evidence of enrolment or other documents that show he is enrolled in an approved course of study.

13. During the hearing the applicant gave evidence about his circumstances in Australia, his study history and reasons for not being enrolled. The applicant explained he experienced difficulty with the Master of Business program and was only able to pass one unit out of three. He sought counselling but was still unsuccessful which caused him stress. The applicant said he was granted a deferment in 2015 for compelling and compassionate reasons.

14. The applicant stated that in late 2015 he was stopped by police for speeding resulting in a large fine and licence suspension. He said he had to attend local court which had a psychological impact upon him and affected his ability to study. The applicant claimed he then reassessed what he wanted to study and enrolled in a Bachelor of Early Childhood Education in 2017. However, his enrolment was cancelled due to non-payment of fees. The applicant requested an adjournment of one month to re-enrol in a course of study claiming he would ask his family for financial assistance. He advised he has also been employed part-time for the last 18 months.

15. The Tribunal considered the applicant’s claims and decided to refuse his request for a one month adjournment. Since his arrival in Australia in 2015 the applicant has not completed any courses and the Tribunal considers he has had ample opportunity to enrol and commit to a course of study.

16. The Tribunal has assessed the evidence in this case and although the applicant has provided some reasons for his situation, enrolment in a course of study is a mandatory requirement for the grant of a student visa and the Tribunal does not have discretion in this regard. 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