SYED MAZHAR ALI ABEDI (Migration)

[2018] AATA 990

SYED MAZHAR ALI ABEDI (Migration) [2018] AATA 990 (27 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  SYED MAZHAR ALI ABEDI

CASE NUMBER:  1617102

DIBP REFERENCE(S):  BCC2016/1839127

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          27 February 2018 at 3:08 am (VIC time)

DATE OF WRITTEN RECORD:                19 March 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 19 March 2018 at 10:03am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Currently enrolled in a course – Eligible for the grant of a student visa

LEGISLATION
Migration Regulations 1994, Schedule 2 cl 573.223

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 October 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 573 visa under the Migration Act 1958 (the Act).

2. At the hearing on 27 February 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. To be eligible for the grant of a student visa, applicants must satisfy a range of criteria set out in the regulations.

4. You applied for a student visa on 24 May 2016, the same day your last visa expired and a decision was made to refuse the application on 3 October 2016 because having considered your circumstances, the delegate was not satisfied you met the Genuine Temporary Entrant criteria and therefore did not satisfy clause 572.223.

5. You appealed the decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision.

6. To satisfy 572.223 an applicant must be both a genuine student and a genuine temporary entrant.

7. To be a genuine student you must be engaged in and applying yourself to a meaningful programme of study progressing academically down an identifiable path.

8. To be a genuine temporary entrant your circumstances must indicate a genuine intention to remain in Australia temporarily

9. As was explained in the primary decision, when considering if an applicant is a genuine temporary entrant, it is necessary to have regard to what is known as Ministerial Direction No. 53 and the issues in that direction. They were detailed in the primary decision and they include:

   ·     Your circumstances

   ·     The value of your course/s to your future

   ·     Your immigration history

   ·     Your incentive to stay in Australia or return home

   ·     If you are using the student visa programme to maintain ongoing residence in Australia

   ·     Any other relevant matters

10. This is not meant as a checklist but as a guide to weigh up an applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criteria.

11. You told me you had read and understood the primary decision, which we went through today in some detail.

12. You told the Tribunal you came to Australia having completed a Bachelor of Engineering in Electronic Communications and you came here to do a Master of IT.

13. You say you studied that for one semester, although you have no evidence of such studies. You then commenced a Certificate III and a Certificate IV in Commercial Cookery.

14. You have not done any study for a couple of years for which you provide no explanation.

15. You say you work 20 hours a week as a Chef in two restaurants. One called Platinum in Prahran and one called Curry Leaves in St Kilda and you told the Tribunal that you work 20 hours a week in each.

16. You said that if you can complete the Diploma, Curry Leaves restaurant will offer you a sponsorship which would give you TR which would enable you to remain in Australia.

17. As I said to you at the start, the role of the Tribunal is to take a fresh look at your application, and consider whether you satisfy the requirements for the grant of a visa.

18. While your visa was refused because the delegate found you did not meet the Genuine Temporary Entrant criteria, you have today told the Tribunal you are not currently enrolled and do not hold a current offer of enrolment.

19. As was explained in the letter sent with the hearing invitation, current enrolment or the offer of enrolment is a pre-requisite for the grant of a visa.

20. It is only when someone is enrolled in a course is it possible to work out other evidence required like the financial evidence which includes course fees and living costs for the duration of the course as well as overseas health cover which is required for the duration of the intended course.

21. As you are not currently enrolled or do not hold a current offer of enrolment, you do not satisfy clause 572.222 which is a pre-requisite for the grant of a student visa.

22. As you do not meet cl.572.222 and are therefore not eligible for the grant of a student visa, the Tribunal does not intend to consider whether you meet the Genuine Temporary Criteria.

23. As you do not meet 572.222 it is the decision of this Tribunal to affirm the decision under review.

    DECISION

24. The Tribunal affirms the decision under review.

    Tim Connellan
    Member