Waqas (Migration)

[2020] AATA 4446

Waqas (Migration) [2020] AATA 4446 (27 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rana Waqas
Mr Arham Rana
Mrs Uzma Naeem

CASE NUMBER:  1835942

DIBP REFERENCE(S):  BCC2018/3378543

MEMBER:Elizabeth Tueno

DATE AND TIME OF

ORAL DECISION AND REASONS:         27 July 2020 at 2:29 pm (VIC time)

DATE OF WRITTEN RECORD:                11 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 11 August 2020 at 9:30am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met–– no evidence of current confirmation of enrolment­– decision under review affirmed

LEGISLATION
Migration Act 1958
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212

Education Services for Overseas Students Act 2000

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 30 November 2018 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 27 July 2020 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 an oral decision for case number 1835942 for Mr Rana Waqas and for Asam Rana and Uzma Naeem.

4. This is an application for review of a decision made by a delegate of the Minister for Immigration, on 30 November 2018, to refuse grant the applicant a student temporary class 2U visa, under section 65 of the Migration Act.

5. The applicant applied for the visa on 6 September 2018 to undertake study in Australia.  At the time the visa application was lodged the student temporary class 2U visa contained two subclasses, a subclass 500 student visa and a subclass 590 student guardian visa.  The applicant does not claim to meet the criteria for a subclass 590 student guardian visa.

6. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212, schedule 2 to the Migration Regulation.  The delegate was not satisfied that he was a genuine who intended genuinely to stay in Australia temporarily. 

7. The applicant appeared before the tribunal, by telephone due to the COVID-19 restrictions, to give evidence and present arguments.  The applicant was represented, in relation to the review, by his registered migration agent.  The hearing was conducted with the available assistance of an interpreter in Urdu and English languages.

8. While the issue before the delegate was whether the applicant is a genuine temporary entrant, the issue before the tribunal now is whether at the time of this decision, he meets the enrolment requirements for a student visa.

9. The criteria for a subclass 500 student via are set out in part 500 of schedule 2 to the Regulation.  The primary criteria in clause 500.201 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. 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.  Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study.

11. Course of study is relevantly defined, in clause 500.111 of the regulations as a full-time registered course. Registered course is defined in the regulations as a course of education or training provided by an institution, body or person that is registered under the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

12. On 10 July 2020 a written invitation to attend today’s hearing was sent to the applicant.  In that invitation he was requested to provide evidence of enrolment in a full-time registered course to the tribunal at least seven days before today’s hearing.  Such evidence was not provided.

13. At the hearing today the tribunal raised with the applicant the fact that he did not appear to be enrolled in a course of study.  It was noted that he had completed an advanced diploma of leadership and management, on 20 October 2019, and that he had provided evidence of the completion of this course.  He said, in his questionnaire response, that he is not currently enrolled in a course of study. 

14. At the hearing his migration agent submitted that he was going to attend the agent’s office, on Thursday this week, to make arrangements to speak to an education consultant.  An application for an adjournment was refused on the basis that there had been ample time between the invitation to attend today’s hearing being sent to the applicant and furthermore on the basis that the applicant had not been enrolled in a course since October 2019, which is a significant period of time not to have been enrolled in a course of study.  The migration agent relied on the current COVID-19 pandemic as a reason why he had not been able to enrol in a course of study to date.  The tribunal does not accept. 

15. Since completing his course in October 2019 there were a number of months, prior to the commencement of the current pandemic, where the applicant could have enrolled in a course of study.  The agent also said that in January their office was closed, and he was not able to enrol in a course of study at that time.

16. It has been some nearly nine months since the applicant was last enrolled in a course of study.  That is a significant period of time to have not enrolled in a course of study.  The tribunal does not accept that the pandemic has prevented the applicant from enrolling in a course of study.  As stated during the hearing, life has continued, business has continued, the world has adjusted to doing business and making arrangements by telephone, online, via Zoom conferences and the tribunal does not accept that the pandemic would have affected the applicant’s ability to enrol in a course of study.

17. Given the evidence before the tribunal, the tribunal is not satisfied that, at the time of this decision, the applicant is enrolled in a course of study and, accordingly, clause 500.211 is not met.  Hearing these findings, the tribunal finds that the criteria for the grant of a subclass 500 student visa are not met.  As concerned, the applicant does not claim to meet the criteria for a subclass 590 student guardian visa. 

18. For these reasons the tribunal finds that the decision under review should be affirmed.  The tribunal affirms the decision not to grant the applicant a student temporary class 2 visa. 

19. It follows that the tribunal also affirms the delegate’s decision, in the case of the second and third named applicants. 

20. This decision is made at 2.29 pm on 27 July 2020. 

    DECISION

21. The Tribunal affirms the decisions under review.

    Elizabeth Tueno
    Member