1419313 (Migration)

[2016] AATA 3129

1419313 (Migration) [2016] AATA 3129 (21 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GURPREET SINGH

CASE NUMBER:  1419313

DIBP REFERENCE(S):  CLF2013/296897

MEMBER:Tim Connellan

DATE:21 January 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 21 January 2016 at 4:06pm

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 7 November 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 29 November 2013. At the time of lodgement, Class TU contained a number of subclasses. With limited exceptions not relevant to this case, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which he or she is enrolled or has an offer of enrolment as his or her principal course, and the corresponding subclass for which that type of course has been specified by the Minister under r.1.40A of the Migration Regulations 1994 (the Regulations).

3. In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in a Diploma of Management as his principal course. The visa was refused because the applicant did not provide the evidence required to demonstrate he was a genuine student as required by cl.572.223 of Schedule 2 to the Regulations. Specifically he failed to provide evidence he met the English language requirements to satisfy the Schedule 5A criteria.

4. On the 26n November 2014 the tribunal received an application to review the decision. Included with the application was a copy of the primary decision.

5. On 26 November 2014 the tribunal wrote to the applicant acknowledging his application and stating 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.

6. Unable to make a decision in the applicant’s favour on the available evidence, on 1 July 2015 the tribunal wrote to the applicant and invited him to attend a hearing scheduled for 21 July 2015. The letter accompanying the invitation requested that he provide a range of evidence including evidence of current enrolment and evidence that he met the Schedule 5A English language and financial capacity requirements for the grant of a visa.

7. The applicant did not respond to the hearing invitation and did not attend the scheduled hearing. The tribunal has therefore made a decision on the available evidence

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In the present case, the applicant nominated his intended principal course of study as a Diploma of Management. The subclass that may be granted is Subclass 572. The issue in the present case is whether the applicant is a ‘genuine applicant for entry and stay as a student’ having regard to the prescribed matters. With the exception of the student guardian visa, this is a requirement for all student visas. For Subclass 572, this requirement is contained in cl.572.223, which is extracted in the attachment to this decision.

9. To meet this criterion, the applicant in this case must give evidence in accordance with the requirements set out in Schedule 5A to the Regulations for the highest assessment level for the applicant. Broadly speaking, these requirements relate to English language ability, financial capacity, and other prescribed matters, and differ depending upon the subclass sought and the applicant’s assessment level. Additionally, the Regulations require that the Minister is satisfied that: the applicant is a genuine student having regard to the stated intention to comply with the applicable visa conditions, and any other relevant matter; and that while the applicant holds the visa he or she will have access to the funds relied upon to satisfy the Schedule 5A financial capacity requirements.

10. The assessment level that applies to an applicant is the highest assessment level at the time of application for the relevant course of study for the subclass of visa: r.1.42.  ‘Assessment level’, and ‘highest assessment level’ is defined in r.1.03.  ‘Assessment level’ means the level of assessment specified by the Minister for a kind of passport. 

11. In this case, the applicant holds a passport of India.  The assessment level for a holder of such a passport for Subclass 572 (the subclass for the applicant’s principal course) is assessment level 3.

12. The evidentiary requirements for this assessment level for Subclass 572 are set out in Part 4 of Schedule 5A and are extracted in the attachment to this decision.

    FINDINGS AND REASONS

13. The issue for the Tribunal is whether the applicant meets the requirements of the regulations of cl.572 of Schedule 2 to the Migration Regulations. The primary decision was based on the applicant’s failure to provide requested evidence to enable the processing of his application.

14. The applicant was invited to provide evidence he satisfied the Schedule 5A requirements relating to his English language proficiency which was the reason his application had been initially refused.

15. The applicant was again invited to provide supporting evidence by the Tribunal when he lodged his application and again with the invitation to the hearing. At the date of this decision, the Tribunal has no evidence that the required documentation has been provided.

16. On the basis of the above, the applicant has not given evidence in accordance with the applicable Schedule 5A requirements and therefore does not satisfy cl.572.223(2)(a).

17. The Tribunal therefore finds the applicant does not satisfy the requirements of cl.572.223.

    CONCLUSIONS

18. As the Tribunal has found the applicant does not meet the requirements of cl.572.223 and as no evidence has been provided on which the Tribunal could be satisfied that the applicant meets the criteria for any of the other Student (Temporary)(Class TU) visa subclasses, the decision under review must be affirmed.

    DECISION

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

    Tim Connellan

    
    

    Member

    ATTACHMENT – Extracts from the Migration Regulations 1994

    572.223(1)     The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant meets the requirements of subclause (2).

    (2)An applicant meets the requirements of this subclause if:

    (a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

    (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)any other relevant matter; and

    (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.