SYED MUJTABA HASSAN QUADRI (Migration)

[2018] AATA 1141

SYED MUJTABA HASSAN QUADRI (Migration) [2018] AATA 1141 (5 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr SYED MUJTABA HASSAN QUADRI SYED MUJTABA HASSAN QUADRI
Mrs Asna Taskheer Asna Taskheer

CASE NUMBER:  1703462

DIBP REFERENCE(S):  BCC2016/3099629

MEMBER:Jennifer Cripps Watts

DATE:5 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 05 April 2018 at 2:17pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Primary visa applicant – Discontinued study because his wife was pregnant – No current offer of enrolment provided – cl.500.211 is not met – Unable to satisfy all cl.500.2 criteria at the time

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03 Schedule 2 cls 500.2, 500.111, 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 on 17 February 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 18 September 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 the delegate was not satisfied the applicant is a genuine applicant for entry and stay as a student.

4. The visa applications that are the subject of the review were refused on 17 February 2017.  The applicant applied for review by this Tribunal on 27 February 2017, within time, and provided the Tribunal with a copy of the Department’s decision to refuse the visas.  The applicant’s matter was constituted to this member and, on 7 March 2018, the Tribunal sent the applicant a written invitation to attend a hearing scheduled on 5 April 2018.   

5. The invitation to the hearing also included information relating to what types of evidence and statements the applicant should consider providing to the Tribunal before the hearing, specifically addressing the issue of whether he “...is a genuine applicant for entry and stay as a student by referring to Direction No.69.”  The Tribunal attached a copy of an extract from the Migration Act 1958, Direction Number 69 – Assessing the Genuine Temporary Entrant criterion for Student Visa and Student Guardian Visa Applications to the invitation, for his ease of reference.  The applicant was informed in the cover letter to the hearing invitation that he should refer to the delegate’s written decision and the reasons why he did not meet the criteria for the grant of the student visa.  He was also informed he should provide a copy of his current Confirmation of Enrolment (COE) as this is required for him to be granted a student visa. 

6. The applicant responded to the Tribunal’s hearing invitation indicating he would attend.  The applicant provided the Tribunal with some documentary information in support of his application prior to and at the hearing.  SMS hearing reminders were sent to the applicant’s mobile number on 27 March 2018 and 4 April 2018.

7. The applicant appeared before the Tribunal on 5 April 2018 to give evidence and present arguments. The applicant told the Tribunal that his wife, the secondary applicant, has recently had a baby and that she could not and did not wish to attend the hearing to give evidence. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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. All criteria must be satisfied at the time a decision is made on the application.

10. The applicant’s visa was refused because the delegate was not satisfied he is a genuine applicant for entry and stay as a student: cl.500.212. The Tribunal informed the applicant, in the letter inviting him to his hearing, dated 7 March 2018, that in addition to copies of academic records and a statement addressing genuine temporary entrant criteria, that he should also provide a current Certificate of Enrolment showing he is enrolled in a course of study satisfying cl.500.211 and stating in the letter that it is required he is enrolled in a course of study for the visa to be granted.

11. The Tribunal stands in the shoes of the original decision maker who, it is reasonable to think, was satisfied the applicant was enrolled in a current course of study at the time of application, because according to his PRISMS record and information on the Department file he was. The applicant confirmed his enrolment at the time of applicant in his oral evidence at the hearing. It is a reasonable inference to draw that the delegate was satisfied that the applicant met the enrolment criterion, cl.500.211, at the time of application and then moved on to consider whether the applicant was a genuine applicant for entry and stay as a student, cl.500.212. The delegate was not satisfied the applicant met this criterion.

12. The Tribunal has first turned its mind to whether the applicant is enrolled in a current course of study as all primary criteria must be satisfied at the time a decision is made on the application.

    Background

13. The applicant is a 36 year old citizen of India.  The secondary applicant is his wife, who is also a citizen of India.  The applicant first arrived onshore holding a subclass 572 temporary student visa in September 2008.  Since then, he has held student or related bridging visas.  

14. In 2014, the applicants married each other, and in 2015 the secondary applicant came to Australia to live with her husband.  The applicant provided evidence, including a New South Wales birth certificate, indicating that the applicants had their first child in December 2017 at Campbelltown Hospital.  The applicant said he, his wife and child (who is now about four months old) all reside together in Minto.

15. The applicant provided the Tribunal with copies of statements of academic results and qualifications, including:

    a.2009    Certificate III Printing and Graphic Arts

    b.2010    Diploma of Multimedia

    c.2011    Certificate IV & Diploma of Business

    d.2014    Advanced Diploma of Management

    e.2015    Diploma of Information Technology Networking

    f.2016    Advanced Diploma of Network Security (completed 20/07/2016)

16. The applicant provided the Tribunal with a document entitled “Offer of Enrolment”.  It indicates that the applicant was offered enrolment by Group Colleges Australia in a Bachelor of Business from 24 October 2016 to 16 August 2019 at a total cost of $31,416. 

17. At the hearing the applicant was asked if he commenced the Bachelor of Business and said he did, but that he only completed one semester before discontinuing study because his wife was pregnant, suffering from very severe morning sickness and he needed to care for her.  He said the last time he attended classes was in December 2016.

18. The applicant provided the Tribunal with some medical documents, including discharge referrals and an antenatal record from Campbelltown Hospital that confirm his wife had a baby in December and that she attended several hospital and medical appointments during 2017.  The Tribunal has considered the documents and accepts that the secondary applicant had a baby and that she and the applicant are the parents of the baby, Mustafa, born in December 2017.

    Enrolment (cl.500.211)

19. 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.

20. ‘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.

21. The applicant did not provide a current COE.  He confirmed at the hearing that he read the invitation carefully.  In the invitation it was clearly stated he should provide a COE as he needs to be enrolled in a course of study to be granted the visa.

22. In seeking to establish whether the applicant had an offer of enrolment, he was asked when he intends to resume study and said, “as soon as possible”.  The applicant has not provided a COE or current offer of enrolment.  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.

23. As the applicant does not meet this threshold criterion, and because he must satisfy all cl.500.2 criteria at the time a decision is made, it is not necessary to assess him against the other criteria in cl.500.2.

24. 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.

25. There has been no claim made or evidence provided to the Tribunal that the secondary applicant is no longer a member of the family unit of the primary person (the applicant) and, on the evidence, all indicators are that she does remain a member of the family unit of the primary person, the applicant.  Accepting, on the face of it, that the applicant’s wife, the secondary applicant, remains member of the family unit of the primary person, the Tribunal also affirms the decision to refuse the visa for the secondary applicant.

    DECISION

26. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Jennifer Cripps Watts
    Member