1506130 (Migration)

[2016] AATA 3134

1506130 (Migration) [2016] AATA 3134 (27 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr AARON JONAS JOSEPH GOMES

CASE NUMBER:  1506130

DIBP REFERENCE(S):  BCC2015/658687

MEMBER:Alexis Wallace

DATE:27 January 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 27 January 2016 at 4:28pm

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 29 April 2015 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 1 March 2015 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.573.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not provide evidence that he satisfied public health criteria including criterion 4005. That criterion required the applicant to provide satisfactory results of a medical and xray examination.

4. The applicant was invited to appear before the Tribunal on Wednesday 27 January 2016 at 11.30am to give evidence and present arguments.  He did not respond to the hearing invitation.  Nor did he appear at the scheduled hearing. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue before the delegate was whether the applicant met the criterion in cl.573.224. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

7. With limited exceptions, 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 be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application. This requirement does not apply to certain ‘eligible higher degree students’, ‘eligible university exchange students’, and ‘eligible non-award students’. There is no evidence before the Tribunal that that the applicant is an eligible higher degree student as defined in cl.573.111 and 574.111 respectively, or an eligible university exchange student or eligible non-award student for the purposes of Subclass 575 as defined in cl.575.111.

8. Before the Tribunal is a letter dated 6 May 2015 in which the applicant stated that he had applied for the student visa in order to extend his stay in Australia for one semester so he could complete his degree in Engineering at the Queensland University of Technology.  Also before the Tribunal is evidence that the applicant successfully completed his Bachelor of Engineering course on 30 June 2015.

9. There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.

10. Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU. The applicant is neither supported by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian.

11. For these reasons, the decision under review must be affirmed.

    DECISION

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

    Alexis Wallace
    Member