Zaman (Migration)

[2018] AATA 5914

Zaman (Migration) [2018] AATA 5914 (31 October 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Tufail Zaman

CASE NUMBER:  1700477

DIBP REFERENCE(S):  BCC2016/2758804

MEMBER:  Meredith Jackson

DATE AND TIME OF

ORAL DECISION AND REASONS:          31 October 2018 at 12:33 pm (QLD time)

DATE OF WRITTEN RECORD:                5 March 2019

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal affirms the decision under review.

Statement made on 05 March 2019 at 3:00pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – enrolment status – not enrolled in a course of study at time of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.214

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 January 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 31 October 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. This is an oral decision in case number 1700477, Mr Tufail Zaman. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 January 2017 to refuse to grant the applicant a student (temporary) (class TU) visa under section 65 of the Migration Act 1958 (the Act).

4. The applicant applied for the visa on 19 August 2016 to undertake study in Australia. At the time the visa application was lodged Student (Temporary) (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.

5. The delegate in the applicant’s case refused to grant the visa on the basis the applicant did not satisfy the financial requirements of cl. 500.214 of schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that that applicant had provided evidence of his financial capacity as required by paragraph 500.214(3) that the applicant does not satisfy the requirements of this paragraph and therefore the requirements of clause 500.214.

6. The applicant appeared before the Tribunal on 31 October 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

7. While the issue before the delegate was whether the applicant met the financial criteria for the visa the issue before the Tribunal now is whether at the time of decision he meets the enrolment criteria for a Student visa.

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 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 clause 500.111 of the Regulations as a fulltime 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 the Education Services for Overseas Students Act 2000 to provide the course to overseas students.

11. On 14 September 2018 a written invitation to attend the hearing on 31 October 2018 was sent to the applicant via his migration agent. In that invitation the applicant was requested to

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provide evidence of enrolment in a full-time registered course to the Tribunal at least seven days before the hearing. Such evidence has not been provided.

1. At the hearing on 31 October 2018 the applicant was again requested to provide evidence to the Tribunal such as a copy of the applicant’s current Certificate of Enrolment. The applicant has not done so.

2. In the applicant’s sworn evidence before the Tribunal, he confirmed that his was last enrolled in a Master of Information Systems and Information Technology Management course until 30 June 2017. The applicant further confirmed in his sworn evidence that he is not enrolled in any course of study in Australia.

3. Accordingly, there is no evidence before the Tribunal that the applicant is enrolled in any course of study. Therefore, the Tribunal is not satisfied that at the time of this decision that the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

4. Given the above findings the Tribunal finds that the criteria for the grant of a subclass 500 Student visa are not met. As confirmed in the hearing the applicant does not claim to meet the criteria for a subclass 590 Student Guardian visa.

5. For these reasons the Tribunal has concluded that the decision under review should be affirmed. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (class TU) visa.

   DECISION

6. The Tribunal affirms the decision under review.

   Meredith Jackson
   Member

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