Velaskar (Migration)

[2018] AATA 803

Velaskar (Migration) [2018] AATA 803 (19 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anil Velaskar

CASE NUMBER:  1700355

DIBP REFERENCE(S):  BCC2016/3148868

MEMBER:Wendy Banfield

DATE:19 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 19 March 2018 at 10:40pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 – Not enrolled in a course of study

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994 r 1.03 Schedule 2 cls 500.111, 500.211, 500.214

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 23 December 2016 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 22 September 2016. 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.500.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he had not provided satisfactory evidence of sufficient funds to meet costs and expenses during his stay in Australia.

   Background

4. The applicant is a citizen of India and is currently 29 years old. He came to Australia in 2009 with the intention of studying a Bachelor of IT. Since arriving in Australia the applicant has completed studies in English and an Advanced Diploma of IT. He has also undertaken part of a Bachelor course but has not been successful in passing all his subjects. The applicant is working part-time in a pharmacy and is supported by his parents.

5. The applicant declared he was unable to provide the necessary evidence of available funds to satisfy the requirements of the Migration Regulations because at the relevant time, the Indian government announced a banknote demonetisation. This was said to have affected his parents’ ability to secure a loan to support the applicant’s studies in Australia.

6. The applicant appeared before the Tribunal on 2 March 2018 to give evidence and present arguments.

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 a course of study as required for the grant of a student visa.

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. The applicant came to Australia on 24 August 2009 with the intention of studying a Bachelor of Information Technology. He said he enrolled in a Bachelor degree but was later excluded from the course as he had failed subjects. According to the applicant he enrolled in an Advanced Diploma of IT in 2014 then after taking an English course, he re-enrolled in a Bachelor degree. The applicant said he studied for three semesters but failed subjects again and sought to enrol in another college. The applicant had to reapply for a student visa in 2016 but it was claimed his application was affected by demonetisation of banknotes in India. As a result of this the applicant’s parents were unable to obtain the necessary evidence of funds to support him.

12. The applicant’s enrolment was cancelled and his visa was refused by the Department. At the time of the Tribunal hearing, the applicant was not enrolled in a course of study. The Tribunal granted the applicant two weeks after the hearing to submit any further evidence in support of his application. However, as of the date of decision on 19 March 2018, the applicant has not provided any further evidence or evidence of enrolment in an approved course of study. While the Tribunal takes into account the applicant’s claimed reasons for not being able to provide evidence of available funds, he has not provided evidence that he meets all the requirements for the grant of a student visa.

13. 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.

14. 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

15. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Wendy Banfield
    Member