Zaidi (Migration)

[2019] AATA 1814

Zaidi (Migration) [2019] AATA 1814 (23 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Syed Mutahir Hussain Zaidi
Mrs Saniya Fatima
Master Syed Jarraar Haider Zaidi

CASE NUMBER:  1727566

HOME AFFAIRS REFERENCE(S):           BCC2017/3093682

MEMBER:E. Tueno

DATE:23 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 23 April 2019 at 4:33pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not genuine temporary entrant – confirmation of enrolment not provided – no evidence applicant is eligible higher degree, exchange, or non-award student – extensive history of study in Australia – adjournment refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), r 1.40A, Schedule 2, cls 500.212, 500.311, 570.232, 571.232, 572.231, 573.111, 573.231, 574.111, 574.231, 575.111, 575.231, 576.229

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 and Border Protection on 23 October 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 27 August 2017. 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 visas 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 he was satisfied that the applicants intended genuinely to stay temporarily in Australia.

4. On 4 April 2019, the applicants were sent an invitation to attend a hearing before the Tribunal on 23 April 2019 at 1:30pm.  At 11:47am on 23 April 2019, the Tribunal received an email from Mrs Saniya Fatima, the primary applicant’s wife, requesting an adjournment.  She stated that her husband was unable to attend the hearing on medical grounds.  She also attached a medical certificate from his GP, Dr Kazmi, which confirmed that he had consulted the applicant on 23 April 2019.  The certificate stated that the applicant “was affected by a medical condition and will be unable to attend study/work from 23 April 2019 until 25 April 2019 inclusive.”

5. The Tribunal refused the request for an adjournment and at 12:34pm on 23 April 2019, the Tribunal sent the applicant an email advising the applicant of the decision and the grounds for the refusal.  The Tribunal was not satisfied that the applicant had demonstrated he was unfit to participate in the hearing.  In particular, the medical certificate provided only made reference to his incapacity to study/work and provided no opinion regarding his capacity to participate in a hearing.

6. The applicant was invited to make himself available by telephone for the purposes of a telephone hearing.  He was advised that in the absence of any further medical evidence in relation to why he was unable to attend or participate in a telephone hearing, his application would be determined by the Tribunal without further notice.

7. At 3:00pm on 23 April 2019, the Tribunal telephoned the applicant.  His wife, Mrs Saniya Fatima, answered the call.  She said her husband was unwell and was suffering from high blood pressure.  When asked why he could not participate in the hearing over the phone, she stated that he had just taken Olmetec, which is his medication for hypertension.  There was no medical evidence presented that was capable of explaining why this condition and medication rendered the applicant incapable of attending the hearing either in person or by telephone.

8. Accordingly, the Tribunal is not satisfied that the applicant’s medical condition and medication prevented him from participating in the hearing. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue before the delegate was whether the applicant met the criterion in cl.500.212. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

11. With limited exceptions, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require 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, and is of a type specified under r.1.40A for the subclass at the time of application. This requirement does not apply to certain ‘eligible higher degree students’, ‘eligible university exchange students’, and ‘eligible non-award students’. There is no evidence before the Tribunal that that the applicant is an eligible higher degree student as defined in cl.573.111 and 574.111 respectively, or an eligible university exchange student or eligible non-award student for the purposes of Subclass 575 as defined in cl.575.111.

12. The applicant has an extensive history of study in Australia.  From the information provided to the Tribunal by the applicant in his s.359(2) response, it appears he was last enrolled in a course of study in March 2013 when he completed a Certificate IV in Automotive Technology.  In the delegate’s decision, there was reference to the applicant proposing to enrol in a Diploma of Automotive Technology.  There is no evidence to suggest that he did enrol in this course.  Moreover, in his s.359(2) response, the Applicant stated that he does not have a confirmation of enrolment in a registered course of study. 

13. Accordingly, the Tribunal finds that the applicant is not enrolled, and does not have a current offer of enrolment, in any applicable course of study.  Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.

14. Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU. The applicant is neither supported by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian.

15. For these reasons, the decision under review must be affirmed.

16. As the Tribunal is not satisfied that the primary applicant has met the primary criteria under cl.500.212, it is not satisfied that his dependant family members have met the secondary criteria under cl.500.311. Accordingly, the decisions under review in relation to Saniya Fatima and Syed Jarraar Haider ZAIDI must be affirmed.

    DECISION

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

    E. Tueno
    Member