1420842 (Migration)

[2016] AATA 4848

1420842 (Migration) [2016] AATA 4848 (14 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kamaldeep Singh

CASE NUMBER:  1420842

DIBP REFERENCE(S):  BCC2014/1224936

MEMBER:Alison Mercer

DATE:14 June 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 14 June 2016 at 11:10am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Requirement to be a genuine student – Studies undertaken different to intended studies – Significantly higher level studies undertaken in home country – Lack of academic progress

LEGISLATION
Migration Act 1958, s 65, 499
Migration Regulations 1994, Schedule 2, cl 572.223(1)(a)

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 a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. Where used in this decision:

   ·     COE refers to Certificate of Enrolment in a course of study;

   ·     PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   ·     VET refers to Vocational Education and Training;

   ·     A reference such as ‘5Axxx’ refers to the referenced item or clause of Schedule 5A to the Regulations;

   ·     The Department refers to the Department of Immigration and Border Protection;

   ·     Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   ·     IELTS refers to the International English Language Testing System.

3. The applicant applied to the Department of Immigration for the visa on 16 May 2014. The delegate decided to refuse to grant the visa on 16 May 2014. 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 Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted 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); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

4. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia temporarily as a student, having regard to the applicant’s circumstances, immigration history and other relevant matters (namely, those set out in Direction 53). In particular, the delegate gave weight to the fact that the applicant’s PRISMS records indicated that since he arrived in Australia in 2008, he had been enrolled in multiple, relatively, inexpensive vocational level courses over a range of subjects, being:

   ·Certificate III in Automotive Mechanical Technology;

   ·Diploma of Business Management;

   ·Certificate IV of Automotive Technology;

   ·Diploma of Management;

   ·Certificate IV in Business;

   ·Advanced Diploma of Business;

   ·Advanced Diploma of Marketing;

   ·Certificate III in Information, Digital Media and Technology;

   ·Certificate IV in Information Technology Networking.

5. The delegate considered that the applicant’s current IT enrolments were unrelated to his previous areas of study, and that he had made unsatisfactory academic progress over nearly 6 years as he had not moved beyond the vocational level.  Moreover, the delegate noted that the applicant had study gaps and although he claimed that these were due to ill health (psoriasis), no medical evidence had been provided to confirm this.  The delegate noted that the applicant now claimed to be studying IT so he could start his own business in India but concluded that he was  not a genuine entrant for stay temporarily as a student but was using the student visa program as a means of maintaining ongoing residence in Australia, due to:

   ·his lack of academic progress;

   ·his study history, and

   ·the lack of value of the courses to his future in India.

6. The Tribunal received a review application from the applicant on 19 December 2014.  It was accompanied by a copy of the delegate’s decision.

7. On 15 December 2015, the Tribunal wrote to the applicant to invite him to a hearing on 13 January 2016.  He was requested to provide a copy of his current CoE, evidence of any studies completed in Australia, an explanation of any gaps in his studies (including any documentary evidence to these) and a statement addressing the issue of whether he was a genuine temporary entrant for study in Australia, having regard to the factors set out in Direction 53, a copy of which was provided to him.  The Tribunal requested that he provide this information 1 week prior to the hearing.

8. On 12 January 2016, the applicant emailed a request for postponement of his hearing, stating that on 11 January 2016, he woke up with extreme inflammation of his right leg joints and was unable to work.  A friend took him to a GP and he was diagnosed with gouty arthritis and psoriasis.  He attached a medical certificate dated 11 January 2016 stating he was unfit for work from 11 to 22 January 2016 inclusive due to gouty arthritis and psoriasis. 

9. On 13 January 2016, the Tribunal wrote to the applicant via email advising that the hearing had been rescheduled to 29 January 2016.  He was advised that the Tribunal would not change this hearing date in the absence of medical evidence specifying that he was unable to attend a hearing (in person or by telephone) of 1.5 to 2 hours in duration, and when he expected to be able to do so.  The request for the provision of information concerning his study history in the first hearing invitation was reiterated and he was provided with another copy of Direction 53.

10. On 25 January 2016, the Tribunal received a statement by email from the applicant outlining his study history.  In summary, he indicated that:

    ·he came to Australia in 2008 to undertake a Certificate III in Automotive Technology and then completed a Certificate IV and a Diploma in the same field;

    ·this was because of his interest in cars;

    ·the field was very competitive so he also undertook courses in Business, Management and Marketing to enhance his prospects of opening an auto workshop franchise in India;

    ·he had suffered from psoriasis for some time and this condition flared up regularly while he was studying in Australia and affected his ability to study;

    ·he became depressed and stayed at home.  He eventually consulted a psychologist and remembered that he was good at fixing lap tops and so on, and therefore rediscovered a passion for IT, which he had studied in India, and decided to pursue further studies in this field;

    ·his dream was to open a hardware and software store in India as this was a significant expanding industry there and did not have physical limitations as an automotive career would have had;

    ·he therefore enrolled in a Certificate III in Information, Digital Media and Technology leading to a Certificate IV in IT Networking but had been unable to complete these courses due to his gouty arthritis and psoriasis.  These conditions had now improved and he was in a position to complete the courses to fulfil his dreams.

11. The applicant appeared before the Tribunal on 27 January 2016 to give evidence and present arguments.

12. The applicant told the Tribunal that he had not been studying since his visa was refused in late 2014.  When asked why, he said that his health issues had affected him, and also, he did not want to pay for a course that he might not be able to complete if the Tribunal made a decision before he had completed his studies, as he would lose money and have an incomplete qualification.  The applicant said that he expected that the Tribunal would take 1 or 2 months to make a decision on his case, not over a year.

13. The applicant said that he developed psoriasis and gouty arthritis after he came to study in Australia in 2008.  He thought that these issues would resolve, but while there have been periods when he has not been affected, there have been other periods when one or both conditions have flared up severely and affected his ability to study or work.  The psoriasis is worst on his back but has also been on his arms.  The Tribunal acknowledged the medical evidence provided by the applicant about these conditions but queried why he was unable to study.  The applicant said that it was also a mental issue as he felt very stressed by the psoriasis in particular, and was very self-conscious because at times, his arms were bleeding.  The applicant described seeking various forms of treatment in Australia and India for these conditions, and provided a number of medical certificates from both countries in relation to the conditions.  He explained that his psoriasis was severe in 2010, and despite undertaking treatment with light with a GP, it did not improve and it was decided that it would be better for him to return to India for treatment there.  He went back to India in August 2010 and stayed there until the end of December 2010.  The treatment there did assist but the conditions have still flared up again at times since he returned to Australia.  His mother sends him homeopathic medicine from India and this generally has helped.  He was also recommended to get sunlight on his back. 

14. In relation to his life before coming to Australia to study in 2008, the applicant confirmed that he completed secondary schooling in India, and did a Bachelor and then a Masters degree majoring in Journalism at the University of the Punjab.  He also undertook some post graduate courses in Communications and in IT.  At the time he came to study in Australia, he was 32 and had been working in a good job as a news editor for a newspaper.  When asked why he would then want to come to Australia to study Automotive Technology at vocational level, the applicant said that although it was a good job by Indian standards, the salary was not that high.  His father had always had the view that if you had a practical trade (that is, could work with your hands) then you would always be able to find work.  Therefore, he decided to come to Australia and study Automotive Technology with a view to setting up his own auto workshop in India.  When queried as to why this would be a better career than a white collar job (such as being a news editor), the applicant said that if you ran your own business, you could earn more than working for someone else.  The applicant said that his parents had worked for the government.  His father had died and his mother was retired and received a pension.  The applicant said that he had 2 brothers in India.  The older is married with his own family and works for the Forestry Department, while the younger studied hospitality and was working in South Africa before returning to India to live with their mother after she had a heart attack.

15. The applicant confirmed that he is divorced and said that this had been stressful for him.  He tried to resolve the problems within the marriage but was unable to do so. Although the Australian divorce was granted in 2011, there are still problems between his and his wife’s families in India, as the latter have brought false claims against him regarding various issues. The applicant said that he expected that these would be resolved soon but said that it had been a stressful experience for him, especially since his father had died shortly after he was divorced.

16. In relation to why he came to Australia to study, the applicant said that when he tried to enrol in Automotive courses in India, he was discouraged from doing so, as he did not have a scientific background and was in a white collar job.  In Australia, this was not a big factor and he was accepted into a Certificate III at Ashmark.  This was packaged with the Diploma of Management at the same college, and he completed these courses in April 2010.  The applicant said that he always intended to study Business courses as well, as this would assist him to establish his own auto workshop in India.  Therefore, he started a Certificate IV in Business at Australia Wide college after April 2010, with the intention of doing an Advanced Diploma of Business and a Diploma of Automotive Management.  However, the flare up of his psoriasis meant that he stopped going to classes and ultimately returned to India between August and December 2010 to have treatment there.  In response to the Tribunal’s query, the applicant said that he got medical certificates and gave these and a statutory declaration to his education provider and asked to defer his studies, which they agreed to do.  He recommenced his studies when he returned in 2011 but needed to extend his CoE to make up for the time that he missed.  The applicant said that he studied continuously until May 2013, and completed the Certificate IV in Business, the Advanced Diploma of Business and the Diploma of Automotive Management in this period.  He then went back and did a Certificate IV in Automotive Technology, which he completed in February 2014.

17. When asked what he then did, the applicant said that he did a Marketing course. This was an Advanced Diploma of Marketing, which he did from early 2014 to about August 2014.  This was to enhance his prospects of successfully establishing his own business in India. The applicant said that he then enrolled in the Certificates III and IV in IT. When asked why he did this, given his evidence to that point was that he intended to open an auto workshop, the applicant said that he needed to upgrade his Indian IT qualifications as they were out of date.  When the Tribunal reiterated its query of why he needed to do this given his expressed plan was to open an Automotive business, the applicant said that he had changed his mind and decided to set up an IT business, for which he needed to upgrade his qualifications.  He said that he realised that his chronic health conditions, running an auto workshop or business would be too difficult, hence why he returned to the idea of pursuing an IT career.  The Tribunal noted that his health problems had been in existence for some years, virtually throughout his studies in Australia, such that it might not accept that it took him 6 years to conclude that his health issues might preclude him setting up an Automotive business.  The applicant said that he had hoped that the health conditions would be resolved but they kept coming back and ultimately he had to change his career plans. 

18. The Tribunal asked the applicant about the fact that in his May 2014 statement of purpose he gave to the Department, he referred to the fact that he was undertaking the Marketing course in order to open an IT business, but he then referred in one paragraph to the fact that he intended to go into the building and construction industry.  The applicant said that at that time, he had a family friend who was in this area, so he was thinking about it (although he ultimately did not go down that path).  The Tribunal noted that his statement of purposes refers to Marketing and IT extensively, but contains one passing reference to building and construction, which raised the possibility that either the applicant did not write the statement but used someone else’s (wholly or partially), or that he was willing to say whatever he thought was necessary to get another student visa, and was not a genuine student.  The applicant said that he had changed courses a few times both in India and Australia, but this did not mean that he was not a genuine student.  Not everyone’s life followed a clear pathway and he had had a number of health and family issues to deal with which caused him a lot of stress and sometimes made decision-making confusing. 

19. When asked if he considered studying IT in India, rather than continuing to have to pay international student fees and living costs by staying in Australia, the applicant said that he was already here when he formed the idea to pursue studies in this area.  He also said that as a mature age student, he would be accepted in an Australian course, but questions would be asked of him if he studied in India because he would be older than the other students.  When asked if this issue would not pose a problem finding a job in IT in India, the applicant said that he hoped to start his own business. Subjects like Marketing were transferable to any area of business.

20. When asked if he had actually undertaken any of the Certificate III or IV in IT, the applicant said that he attended Certificate III classes for about a month, and then his psoriasis got worse so he stopped going.  The applicant also said that he did not want to pay money for a course he might not be able to complete, if the Tribunal made a decision against him before he had finished.

21. In relation to his work history in Australia, the applicant said that he had done a variety of jobs within the terms of his student visa, including cleaning, labouring and driving a taxi.  At one time, he and another friend (an Australian citizen of Indian background) tried to set up an import/export business for grains (such as lentils and rice) but they could not raise the finances to do so. When asked why he did this, the applicant said that he had hoped it might work out and provide a means for him to spend part of the time in India (which was better for his psoriasis) and part of the time in Australia, but it didn’t work out.  The applicant said he had explored running an export/import business in India before coming to Australia but this did not proceed. 

22. The Tribunal raised its concerns with the applicant that his history of studying relatively inexpensive vocational level courses, particularly where he had higher qualifications and had professional employment in India, suggested that he was using the student visa program to reside here and was not a genuine temporary entrant for study.  It noted that these concerns were given weight by the fact that the applicant had moved from Automotive Technology to Business to Marketing to IT (and apparently had also considered Building and Construction) and had been in Australia for close to 8 years.  It further noted that as he was in his late 30s, the applicant had limited reason to keep prolonging his studies.  The applicant reiterated that his intentions and changes of direction were genuine. He told the Tribunal that before he came to study in Australia, his journalist friends were evenly divided between those who thought he had a good job in India, and those who thought his opportunities might be better if he went to study in Australia.  He said that he took that chance.

23. The documents provided by the applicant at hearing were the following:

    ·     statutory declaration dated 6 August 2010 by the applicant in which he states that he is going to India because he is sick and wanted to undertake further treatment there;

    ·     letter from Dr Paul Curnow of Williamstown and Bendigo Dermatology, dated 2 August 2010, stating that the applicant had attended his clinic for light treatment since 7 July 2010 for his severe psoriasis and that he would be returning to India due to family circumstances, where he would seek further treatment;

    ·     letter from Dr Jagjit Singh, Homeopath, Patiala, dated 2 February 2011, confirming that he has treated the applicant for psoriasis in 2010 and 2011 and listing medicine prescribed to the applicant;

    ·     letter from Dr Darshan Singh Sandhu, New Era Homeo Clinic, Patiala, dated 19 December 2010, confirming he treated the applicant for a skin eruption (psoriasis) in August 2010 and that he was still under treatment although the condition had improved; and

    ·     histopathology report from Dr SP Singh’s Path Lab, Patiala, dated 19 August 2010, indicating that the applicant had a skin biopsy on that date and the features of the skin sample were consistent with a clinical diagnosis of chronic eczematous dermatitis.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is subclass 572.

3. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

   (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)     …

4. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

   ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

5. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

   The applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future

6. The Tribunal has considered the applicant’s situation in relation to his home country, India. The Tribunal acknowledges that the applicant’s parents and his older and younger brothers remain living there. It accepts that the applicant was married but is now divorced.  While the Tribunal considers that the fact that the applicant’s close family remains in India provides a significant tie for the applicant to his home country, the Tribunal gives weight to the fact that the applicant had, to the time of the Tribunal hearing in January 2016, returned there to see his family on only 3 occasions since coming to Australia in April 2008, most recently in 2010.  Two of those visits were for 1 month while the last visit was for approximately 4 months, during which time the Tribunal accepts the applicant sought treatment for his psoriasis. In the Tribunal’s view, the infrequency of the applicant’s visits to India undermines his assertion that his family ties were a strong reason for him to return to India at the conclusion of his study in Australia.

7. While the applicant asserted that the economic conditions in India were good, and that he had been in professional employment before coming to Australia, the Tribunal retains concerns about his reasons for remaining in Australia as long as he has.  It considers that the fact that he has been consistently employed in part-time work (and at one stage considered opening a business with a friend) since coming to Australia, while completing a range of non-related, relatively inexpensive vocational courses, strongly suggests that the applicant is utilising the student visa program to remain in Australia indefinitely, in contravention of the purpose of the student visa program.

8. Moreover, the Tribunal has significant concerns about the value of the proposed course(s) to the applicant’s future.  The applicant maintained that, despite having a Bachelor degree and a Master’s degree, plus IT training and a postgraduate communications qualification from India and previous professional employment there as a news editor, plus Automotive Technology, Business, Management and Marketing qualifications from Australia completed over 8 years, it would enhance his career prospects if he now completed a package of IT courses in Australia.  As discussed with the applicant at the hearing, the Tribunal has concerns about his decision to come to Australia at 30 years of age and undertake a vocational course in Automotive Technology, having achieved Masters level study and professional employment in India, particularly when considered against the fact that he has had long standing health issues.  The Tribunal considers it would have been clear to the applicant that he was unsuited to a manual career such as Automotive Technology due to his health issues and it considers his choice of this course to be implausible. The Tribunal finds it suggestive of being simply a means to come to and reside in Australia. Similarly, the Tribunal considers his further vocational courses in Australia in Business, Management and Marketing to have been undertaken to prolong his time in Australia.  The fact that he apparently also considered undertaking a Building and Construction course, despite having no background in this area and physical limitations due to his health conditions, adds to the Tribunal’s concerns about his genuineness and whether his past or proposed study in Australia would be of any realistic benefit to his career prospects. 

9. In relation to his proposed package of IT courses, the Tribunal considers that the applicant was unable to articulate a plausible reason why he could not now return to India with the skills and qualifications he currently has and undertake an IT course there.  It rejects as implausible his reason that it would be difficult for him to do so as a mature age student, as it considers that this would be no different in Australia.  While the Tribunal acknowledges that students may legitimately change their career plans and/or courses, the Tribunal gives weight to the fact that the applicant in this case was 30 when he came to Australia and is now close to 40.  He is not a school leaver or a person without life experience. Having considered the applicant’s evidence on this issue, the Tribunal is not satisfied that the course that the applicant proposes to undertake would be of any realistic benefit to him in India nor that there are not more appropriate avenues to pursue IT studies than by remaining in Australia for a further 1 to 2 years, a period which would take his overall time in Australia to close to 10 years.  This conclusion strengthens the Tribunal’s view that the applicant is utilising the student visa program to remain in Australia indefinitely, in contravention of the purpose of the student visa program.

   The applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

10. There is no evidence before the Tribunal that the applicant made any previous visa applications for Australia prior to the series of student visas he has been granted.  Nor does it have information in relation to his visa applications to other countries (if any). 

11. In relation to his Australian immigration history, the Tribunal finds that the applicant arrived in Australia in April 2008, on a subclass 572 (Vocational Education and Training Sector).  The Tribunal further finds that since then, he has been granted 3 further student visas in the period 2010 to 2014.  In that time, he has completed a number of vocational courses, being:

    ·Certificate III in Automotive Technology;

    ·Certificate IV in Automotive Technology;

    ·Diploma of Automotive Management;

    ·Certificate IV in Business;

    ·Diploma of Business;

    ·Advanced Diploma of Marketing; and

    ·Diploma of Management.

12. The Tribunal finds that the applicant was not studying for at least 4 months in 2010, and that although he commenced a Certificate III in IT, he ceased this study when his current student visa application (the subject of this review) was refused and has not been studying since then. The Tribunal accepts that the 2010 gap in study was because the applicant returned to India to seek treatment for his psoriasis.  In relation to his lack of study since late 2014, the applicant gave evidence that his psoriasis flared up and also that he did not want to pay tuition fees for a course that he might not be able to complete if his review application was unsuccessful.  The applicant further indicated that he believed his review application would take 1 to 2 months.  The Tribunal has some concerns about the applicant’s explanations, as it is unable to see how the applicant’s psoriasis would have prevented further study in the field of IT.  Moreover, it considers that he would have been aware, or could easily have found out by inquiry, that the review process at the Tribunal would take longer than 1 to 2 months.  The Tribunal considers that the applicant’s failure to study for over a year adds to its concerns that he is not a genuine applicant for temporary entry and stay in Australia as a student.

13. The Tribunal finds that the applicant has now been in Australia for over 8 years, during which time he has completed a range of relatively inexpensive vocational level courses.  He has not been studying for the last 12 months or so, and although he maintained he would still undertake the package of IT courses if given the chance, the Tribunal considers his level of academic achievement and progress to date to be poor (particularly in light of the fact that he has Masters level qualifications and was professionally employed in India prior to coming to Australia) and furthermore, to be suggestive of him not being a genuine applicant for temporary entry and stay as a student in Australia.  The Tribunal further acknowledges that the applicant has paid various course fees over the duration of him time in Australia but considers this to be relatively inexpensive over an 8 year period, particularly considering the applicant has had part time employment during this time.  Finally, while the Tribunal acknowledges that the applicant has had some health issues and got divorced while in Australia, it does not consider that either of these factors are sufficient to plausibly account for the number of different courses undertaken by the applicant. This situation leads the Tribunal to conclude that the applicant is utilising the student visa program to remain in Australia indefinitely, in contravention of the purpose of the student visa program.

    Any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant

14. The Tribunal has considered the totality of the applicant’s circumstances and considers that his time in Australia has been characterised by a lack of genuine academic progress, against a backdrop of ongoing part-time employment.  There appears no plausible reason why the applicant could not now return to his home country of India and re-enter professional employment in his previous field, or undertake an IT course there if he genuinely wishes to enter this field of employment.  The Tribunal does not accept his explanation for his proposed further study in Australia as plausible or credible in relation to his future career prospects. 

15. Taking into account all the evidence before it, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay in Australia as a student, and concludes that he is using the student visa program to maintain ongoing residence in Australia.

16. Accordingly, the applicant does not meet cl.572.223(1)(a).

17. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    Alison Mercer
    Member