1409844 (Migration)

[2015] AATA 3730

1409844 (Migration) [2015] AATA 3730 (24 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Deepika Radhakrishnan

CASE NUMBER:  1409844

DIBP REFERENCE(S):  BCC2014/649726

MEMBER:Tim Connellan

DATE:24 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 24 November 2015 at 2:24pm

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 21 May 2014 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 6 March 2014 to undertake study in Australia. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575), or whether the applicant has the support of the relevant Minister (Subclass 576).

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.573.222 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant failed to provide a satisfactory Certificate of Enrolment.

4. The applicant was represented in relation to the review by his registered migration agent.

   RELEVANT LAW

5. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Regulations. For applicants who apply as a student, the subclass that can be granted in any particular case depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course, and, with limited exceptions, the subclass for which that type of course was specified by the Minister under r.1.40A (see cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2) or, for Subclass 576, approval of the course by the AusAID Minister or the Defence Minister (see Part 576 of Schedule 2).

6. With limited exceptions not relevant to this case, 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 the subject of a current offer of enrolment in, a course of study that is a principal course, and specified under r.1.40A for the subclass at the time of application.

   CLAIMS AND EVIDENCE

   Background

7. According to movement records, the applicant arrived in Australia on 24 September 2010 as the holder of a subclass 573 Higher Education Sector student visa current until 15 March 2012. She was subsequently granted two further subclass 573 visas, the latest of which was current until 6 March 2014 on which date she lodged a further 573 visa the subject of this review.

8. With the application she provided evidence of enrolment in a Master of Professional Technology at Swinburne however on 20 March 2014 this enrolment was cancelled.

9. On 2 April 2014 an email was sent requesting a valid CoE.

10. On 30 April 2014, she provided a letter of offer from {Performance Education. While it was titled “Confirmation of Enrolment” it was not an official CoE. No further evidence was provided and no evidence of enrolment was found on PRISMS.

11. Consequently on 21 May 2014, a delegate of the Minister made a decision to refuse the application on the basis the applicant did not satisfy cl.573.222.

12. On 3 June 2014 an application was lodged with the Migration Review Tribunal to review the decision

13. On 15 October 2015, the Tribunal wrote to the applicant via her migration agent and advised that as it was unable to make a decision in her favour on the available evidence, she was invited to attend a hearing scheduled for 24 November 2015.

14. On 23 October 2015, the Tribunal received a hearing response from the migration agent indicating that the applicant and the agent would both attend the hearing.

15. On 23 November 2015 the Tribunal received an email from the agent saying the applicant cannot be contacted and he had received advice from a friend that the applicant had departed Australia.

16. The applicant did not attend the scheduled hearing.  The Tribunal has therefore made a decision on the available information.

17. The Tribunal has before it the Department’s file relating to the applicant.

    FINDINGS AND REASONS

18. With limited exceptions (AusAID, Defence, and secondary school exchange students), the Migration Regulations 1994 (the Regulations) require applicants for student visas to be enrolled in or offered a place in a full-time registered course of study in order to satisfy the time of decision visa criteria.

19. It is only when an applicant’s intended course of study/ies is known that it is possible to determine other criteria that must be met to be eligible for the grant of a student visa. e.g. the required duration of Overseas Student Health Cover, the course costs and living costs associated with the duration of the course etc. etc. 

20. The applicant did not attend the scheduled hearing.

21. The applicant applied for a Student (Temporary) (Class TU) visa for the purpose of study in Australia. There is no evidence before the Tribunal that the applicant is currently enrolled in or the subject of a current offer of enrolment in any course of study.

22. Consistent with the delegate’s finding in the primary decision, a copy of which the applicant provided with her review application, PRISMS records show no evidence of current enrolment.

23. The Tribunal is therefore not satisfied that the applicant is enrolled in or the subject of a current offer of enrolment in a course of study that is a principal course and of a type specified for any of subclasses 570, 571, 572, 573, 574 or 575. On that basis, the Tribunal finds that the applicant does not satisfy cl.570.232, 571.232, 572.231, 573.231, 574.231 or 575.231 of Schedule 2 to the Regulations.

24. Additionally, there is no evidence before the Tribunal which suggests that the applicant meets the criteria for either Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian), the remaining subclasses of the Student (Temporary) (Class TU) visa.

    CONCLUSIONS

25. As the Tribunal has found the applicant does not meet an essential requirement of Schedule 2 for visa subclasses 570, 571, 572, 573, 574 and 575, and as no evidence has been provided on which the Tribunal could be satisfied that the applicant meets the criteria for the remaining Student (Temporary) (Class TU) visa subclasses, the decision under review must be affirmed.

    DECISION

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

    Tim Connellan
    Member