1506245 (Migration)

[2016] AATA 3898

1506245 (Migration) [2016] AATA 3898 (19 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Peichuan He
Ms Zhenyu Xie

CASE NUMBER:  1506245

DIBP REFERENCE(S):  BCC2015/732648

MEMBER:Antonio Dronjic

DATE:19 May 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 19 May 2016 at 5:42pm

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 24 April 2015 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. Where used in this decision:

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

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

   c.VET refers to Vocational Education and Training;

   d.The Department refers to the Department of Immigration and Border Protection;

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

   f.GTE refers to Genuine Temporary Entrant.

3. The applicants applied for the visas on 6 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).

4. The delegate in this case refused to grant the visas on the basis that the primary visa applicant (the applicant) did not satisfy the requirements of cl.573.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant was not a genuine applicant for entry and stay as a student.

5. The Tribunal received review applications on 7 May 2015. The applications were accompanied by a copy of the delegate’s decision.

6. On 26 April 2016 the tribunal invited the applicants to attend a hearing on 19 May 2016. In addition, the tribunal invited the applicants to provide:

   ·A copy of the first named applicant’s current COE as required for the grant of a student visa;

   ·Document/s that shows that the first named applicant is currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa;

   ·Documents that show the first named applicant’s past studies in Australia, including copies of attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to the applicant’s past or intended studies in Australia; and

   ·An explanation of any gaps in the first named applicant’s enrolment/s and any documentary evidence relevant to the applicant’s explanation;

7. On 6 May 2016, the applicants submitted a letter from Thalia O'Sullivan , Senior Regulation Officer at Department of Education Services, stating that she first met Mr He in 2015 after he made an appeal to the Minister for Education (Western Australia) for a review of the decision made in relation to his enrolment cancellation at Edith Cowan University; that Mr He had a very traumatic year in 2013, due to pressures of his parents being ill, his wife being pregnant and bed-ridden, and then a car accident occurring. She further stated that Mr He had applied for a remission of tuition fees in 2014 for three units he had not successfully completed which led to his enrolment being cancelled. Me He had one unit left to complete his degree. Mr He re-enrolled at Curtin University while the WA Ombudsman Office considered his case in 2015. This was done in case Mr He could not be re-enrolled at ECU to continue his studies for a Bachelor degree.

8. With this letter the applicant enclosed:

   ·Copy PRISM records indicating that the applicant’s enrolment into Bachelor of Commerce was cancelled on 8 June 2015;

   ·Copy letter of support from Thalia O'Sullivan submitted to the department in April 2015 in support of the visa application; and

   ·Copy undated letter of support from Thalia O'Sullivan addressed to Curtain University.

9. On 11 May 2016, the applicants’ representative submitted additional documents in support of the review application, including:

   ·Mr HE Peichuan’s family photos and Mobile phone records statement which showed he contacted with his father in last few years;

   ·Medical Certificate of Mr HE Peichuan’s mother and his flight ticket booking record to see his mother in China;

   ·Bank Statement which showed the funds transfer from HE Peichuan’s father to support his study in Australia;

   ·COE issued by Curtin University; and

   ·Personal Statement of Mr HE Peichuan, declaring that he will go back to China after finishing the course; that in February 2015 he enrolled into Bachelor of Commerce Degree at Curtin University; that in May 2015 he travelled back to China as his mother was ill and because of that he discontinued his studies during the first semester. During the second semester, he separated from his wife and for that reason did not ‘put any attention’ to his study.

10. The first named applicants appeared before the Tribunal on 19 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by their registered migration agent.

11. The applicant is 30 years of age, male citizen of China. Approximately six months ago he separated from his wife who is currently in China together with their child.

12. His parents live in China and he claims to own a real estate property under his name in China. Prior to arriving to Australia, he has completed two years of post-secondary studies in China (hospitality) at the Institution that had cooperation with Perth Institute from Australia. He did not work in China.

13. He first arrived in Australia in November 2006 as a holder of a Student visa subclass 573 based on his enrolment into an Advanced Diploma in Hospitality. He commenced the course soon after arriving in Australia and was awarded an Advanced Diploma of Hospitality Management on 11 February 2010.

14. On 22 February 2011 he enrolled into Bachelor of Business course at Edith Cowan University at Perth. He claims that he completed all but one subject. His enrolment was cancelled in March 2015. In March 2015, the first named applicant made an appeal to the Minister for Education (Western Australia) for a review of the decision made in relation to his enrolment cancellation at Edith Cowan University. He also wrote to WA Ombudsman seeking his help to resolve this matter. He stated that he did not complete the remaining subject because of serious problems that affected his life and study in Australia.

15. He gave evidence that in March 2015 he enrolled into Bachelor of Commerce course at Curtin University. This enrolment was cancelled on 8 June 2015. He confirmed that he has not been enrolled into any course of study since August 2015.

16. I asked him if he is currently enrolled in, or is the subject of a current offer of enrolment. He stated that he is not. I raised the additional issue with the applicant. I explained that cl.573.231 to the Regulations prescribes that, at the time of my decision, the applicant must be enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course.

17. I further noted that with its hearing invitation letter of 26 April 2016, the tribunal invited the applicant to provide documentary evidence confirming that he is currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa. I explained the consequences of not being able to meet cl.573.231.

18. He reiterated that the reasons for not being enrolled from August 2015 are separation from his wife, custody dispute, health issues with his parents and motor car accident he was involved in Australia.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue before the delegate was whether the applicant met the criterion in cl.573.223 (1)(a). However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

21. 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.

22. Based on the evidence before me, including the applicant oral evidence given at the hearing and a copy of the PRISMS report submitted to the tribunal by the applicant together with Ms Thalia O’Sullivan’s letter, I find that, at the time of my decision, the applicant is not 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.

23. 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.

24. As the first named applicant was unable to meet the criteria in cl.573.231, it is not necessary for the Tribunal to make findings as to whether the first named applicant is a genuine applicant for entry and stay in Australia as a student and meets cl.573.223.

25. The Tribunal also affirms the decision not to grant the second named applicant a Class TU visa as there no evidence that the secondary applicant meets the secondary visa criteria to be a member of the family unit of a person who holds a subclass 573 visa and there is no evidence that she meets the primary visa criteria in her own right.

    DECISION

26. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Antonio Dronjic
    Member