Subedi (Migration)

[2018] AATA 3160

Subedi (Migration) [2018] AATA 3160 (24 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manjil Subedi

CASE NUMBER:  1700552

DIBP REFERENCE(S):  BCC2016/2774306

MEMBER:Stephen Conwell

DATE AND TIME OF

ORAL DECISION AND REASONS:          24 May 2018 at 12:56 pm (VIC time)

DATE OF WRITTEN RECORD:                3 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Course enrolment – No valid enrolment offer – Decision under review affirmed

LEGISLATION
Education Services for Overseas Student Act 2000 (Cth)
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03 Schedule 2 cls 500.111, 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 22 December 2016 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 24 May 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. This is a decision, oral decision, in the case of 1700552, the applicant Manjil Subedi.  Mr Subedi applied for his latest student visa on 22 August 2016.  By a decision dated 22 December 2016 that application was refused on the basis that the delegate was not satisfied that Mr Subedi met clause 500.214, which relates to financial capacity.

4. Mr Subedi appeared at the Hearing today without a migration agent to give evidence.  As has been explained at length to the applicant, while the issue before the delegate was whether the applicant satisfied the financial capacity requirements in clause 500.214, the issue before the Tribunal today is whether at the time of this decision the applicant meets the enrolment requirements of a student visa.

5. The applicant has been made aware, and confirms that he was aware, of this mandatory requirement prior to the Hearing as he was advised of this by his migration agent.  And he acknowledges that he is aware that having a valid enrolment is a mandatory requirement and at time of decision a mandatory requirement for all student visa applications.

6. With limited exceptions, none of which are relevant to the present case, the Regulations require for all subclasses of the student visa that at the time of decision an applicant must be enrolled in or be the subject of a current offer of enrolment in a course of study that is a principal course.

7. Mr Subedi applied for his student visa on 22 August 2016.  At the time of his visa application the student visa temporary class TU contained two subclasses, subclass 500 student visa and subclass 590 student guardian visa.  The applicant applied for the visa to undertake study in Australia and he has confirmed that he does not meet the criteria for a subclass 590.

8. As discussed with the applicant, the department refused his visa on the grounds of not satisfying clause 500.214, the financial capacity criterion.  However, today by not having evidence of enrolment or a valid offer of enrolment the applicant does not satisfy one of the mandatory criteria for all student applications.

9. The criteria 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.

10. As discussed with Mr Subedi at Hearing, the issue in the present case is whether the applicant is enrolled in a course of study as required for the grant of a visa.

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

12. Course of study is relevantly defined in clause 500.111 of the Regulations as a full-time registered course.  Registered course is defined in Regulation 1.03 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 Student Act 2000 to provide the course to overseas students.

13. On 2 May the applicant was invited to attend the Hearing today by a written invitation addressed to the applicant's migration agent.  In that invitation the applicant was requested to provide evidence of enrolment in an approved course of study to the Tribunal at least seven days before the scheduled date of the Hearing.  No such evidence has been provided.

14. At the Hearing today the applicant was again requested to provide this evidence to the Tribunal such as a copy of a current certificate of enrolment or a valid letter of offer.  The applicant has not done so and has confirmed in his oral evidence that he is not currently enrolled in a course of study and he has not been enrolled in a valid course of study for some time since midway through 2016.

15. In your sworn evidence to the Tribunal today you confirmed you were last enrolled in 2016.  You further confirmed in your sworn evidence that you are not currently enrolled nor that you have a valid offer of enrolment in any course of study in Australia.

16. Accordingly, there is no evidence before me that you are now enrolled in or have a current offer of enrolment in any course of study.  Therefore, the Tribunal is not satisfied that at the time of this decision that you are enrolled in a course of study and accordingly, clause 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 has confirmed he is not currently enrolled and therefore the Tribunal has concluded that the decision under review should be affirmed.  The decision of the Tribunal therefore is to affirm the decision not to grant the applicant a student temporary class TU visa.  This decision is made at 12.56 pm on 24 May 2018.

    DECISION

18. The Tribunal affirms the decision under review.

    Stephen Conwell
    Member