1417304 (Migration)

[2015] AATA 3272

1417304 (Migration) [2015] AATA 3272 (6 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Antonio Ventura

CASE NUMBER:  1417304

DIBP REFERENCE(S):  BCC2014/1628288

MEMBER:Tim Connellan

DATE:6 August 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 6 August 2015 at 9:06am

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 to refuse to grant the applicant, Mr Antonio Ventura a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Ventura applied to the Department of Immigration for the visa on 2 July 2014. The delegate decided to refuse to grant the visa on 10 October 2014.

3. 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).

4. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.570.223(1)(a) of Schedule 2 to the Regulations. The delegate was not satisfied that Mr Ventura intended genuinely to stay temporarily in Australia.

5. Mr Ventura applied to the Tribunal on 21 October 2014 for review of the delegate’s decision.

   RELEVANT LAW

6. The issue before the delegate was whether Mr Ventura met the criterion in cl.570.223. However, the issue before the Tribunal is whether, at the time of decision, Mr Ventura is enrolled in, or is the subject of a current offer of enrolment in, a course of study that meets the requirements of the Regulations.

7. 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

8. According to movement records, Mr Ventura arrived in Australia on 22 March 2012 as the holder of a subclass 570 student (ELICOS) visa current until 22 June 2012. He subsequently held a number of other visas including 3 further subclass 570 student (ELICOS) visas the last of which was granted on 18 November 2013 and was current until 13 July 2014. On 2 July 2014 Mr Ventura applied for a further subclass 570 visa.

9. In processing the application, the delegate noted Mr Ventura had listed his intended studies as General English (Beginner to Upper Intermediate) [0506010E], a course he appeared to have completed on four previous occasions.

10. There was insufficient information provided with the application to satisfy the delegate that Mr Ventura met the criteria for his assessment level and so he was requested within 28 days to provide supporting evidence including:

    ·     Evidence he met the Genuine Temporary Entrant (GTE) criteria,

    ·     Evidence of all previous and current employment, and

    ·     Evidence of Overseas Student Health Cover

11. In response he provided

    ·     An ANZ bank statement

    ·     Evidence of Overseas Health Cover

12. No further documents were provided and on 10 October 2014 a delegate of the Minister made a decision to refuse the application.

13. On 21 October 2014 an application was lodged with the Migration Review Tribunal to review the decision. A copy of the primary decision was included with the review application.

14. On 27 October 2014 the Tribunal wrote to Mr Ventura acknowledging his application and advising that if he wished to provide material or written arguments for the Tribunal to consider he should do so as soon as possible. No submissions were received

15. On 12 June 2015 the Tribunal wrote to Mr Ventura and advised that as it was unable to make a decision in his favour on the available evidence, he was invited to attend a hearing by telephone scheduled for 9 July 2015 to give evidence and present arguments relating to the issues arising in her case.

16. In addition to the invitation to the hearing, the letter invited Mr Ventura to provide a range of evidence to enable the Tribunal to make an informed decision. The specific information requested included evidence of current enrolment, which it advised was a requirement for the grant of a student visa; he was also requested to provide evidence of all past studies in Australia as well as a statement addressing the issue of whether he was a genuine temporary entrant by referring to Ministerial Direction No 53, a copy of which was included with the invitation..

17. Mr Ventura appeared before the Tribunal on 9 July 2015.

18. The hearing was conducted with the assistance of an interpreter in the Italian and English languages.

19. Mr Ventura told the Tribunal he had read and understood the primary decision.

20. The Tribunal noted he had provided evidence of attendance at 2 ELICOS courses and asked whether he had any of the other requested evidence. He replied that he had written a statement. The Tribunal noted the statement which simply said that his problem was that his pregnant wife was unable to work and needed him to support her. The Tribunal told Mr Ventura it did not address the issues of whether he was a genuine temporary entrant.

21. Mr Ventura told the hearing he wanted the visa to study an English course. The Tribunal observed he had studied the same course four times previously which it told him may indicate he was not a genuine student. He said that despite the course being the same name, he had been to different classes.

22. He said was not currently enrolled in any registered course. He said his agent had told him not to waste money on an enrolment which he may lose if his visa was not granted.

23. The tribunal pointed out to the applicant that enrolment was a requirement for the grant of a visa as had been stated in the letter accompanying the hearing invitation.

    FINDINGS AND REASONS

24. 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.

25. 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. 

26. With the invitation to the Tribunal hearing, Mr Ventura was invited to provide evidence of current enrolment which it advised was a requirement for the grant of a student visa. No such evidence was provided and at the hearing it was Mr Ventura’s evidence that he was not currently enrolled in any course. The Tribunal referred to the hearing invitation letter and repeated the advice that enrolment was a pre-requisite for the grant of a visa.

27. At the date of this decision, the Tribunal has received no evidence that Mr Ventura holds current enrolment or an offer of enrolment.

28. Mr Ventura has applied for a Student (Temporary) (Class TU) visa for the purpose of study in Australia. It was his evidence that he is not currently enrolled and had not been so since February 2015. No evidence of enrolment or offer of enrolment has been provided. The Tribunal is therefore not satisfied that Mr Ventura 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 Mr Ventura does not satisfy cl.570.232, 571.232, 572.231, 573.231, 574.231 or 575.231 of Schedule 2 to the Regulations.

29. Additionally, there is no evidence before the Tribunal which suggests that Mr Ventura 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

30. As the Tribunal has found Mr Ventura 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 Mr Ventura meets the criteria for the remaining Student (Temporary) (Class TU) visa subclasses, the decision under review must be affirmed.

    DECISION

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

    Tim Connellan
    Member