1509235 (Migration)

[2016] AATA 3444

1509235 (Migration) [2016] AATA 3444 (25 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms SEEMA SEEMA
Mr Jeevan Kumar 

CASE NUMBER:  1509235

DIBP REFERENCE(S):  BCC2015/1422920

MEMBER:Antonio Dronjic

DATE:25 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 25 February 2016 at 9:41am

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

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

   f.IELTS refers to the International English Language Testing System.

3. The applicants applied for the visas on 18 May 2015. 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).

4. In the present case, the delegate assessed the first named applicant (the applicant) against the criteria for a Subclass 572 visa on the basis of enrolment in an Advanced Diploma in Business. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.572.223(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant has failed to provide evidence in accordance with requirements mentioned in the applicable Schedule 5A related to her financial capacity.

5. The Tribunal received review applications on 9 July 2015. It was accompanied by a copy of the delegate’s decision.

6. By letter dated 20 January 2016 the applicants were invited to attend the hearing scheduled on 18 February 2016 to give evidence and present arguments relating to the issues arising in the review. In addition, the tribunal invited the applicants to provide:

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

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

   ·Documents that demonstrate that the first named applicant has sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period, including:

   oevidence of fees of current or proposed course/s the applicant has already paid, or still owe for past courses

   oevidence of funds from an acceptable source

   oif the applicant is seeking to rely on a money deposit, the applicant may need to show how long the deposit was held immediately before the date of the visa application

   oif the applicant has a loan secured against a money deposit, evidence of where the money deposit came from, and the loan must still be current

   oevidence of the regular income of any person who is providing funds to the applicant , and their relationship to you

   oevidence that the applicant has genuine access to the funds that he or she declared while the applicant holds a student visa, such as evidence of any money you have received or been given

7. The review applicants were advised that if they do not attend the hearing and a postponement was not granted, the Tribunal may make a decision on their case without further notice.

8. On 11 and 17 February 2016 the Tribunal sent SMS hearing reminders to the applicant’s mobile telephone number.

9. On 17 February 2016 the applicant sought adjournment of the scheduled hearing stating that ‘on the basis of my medical condition I am unable to attend the hearing’. She enclosed a Medical Certificate dated 17 February 2016 from Wallan Family Practice stating that ‘the applicant has a medical condition and will be unfit for work from 17 February 2016 to 19 February 2016 inclusive’.

10. On the same day, the Tribunal wrote the following email to the applicant:

    ‘I am writing in relation to an application for review by the Migration and Refugee Division of the AAT. The Tribunal refers to your correspondence dated 17 February 2016 2014 seeking an adjournment of the hearing scheduled for 18 February 2016, and attaching a Medical Certificate. The Medical Certificate states that you have a medical condition and you will be unfit for work from 17-19 February 2016 2014 inclusive.
    On the basis of the medical evidence currently before the Tribunal, the presiding Member is not prepared to grant an adjournment of the hearing.
    Having had regard to the limited information contained in the Medical Certificate, the presiding Member is not satisfied that you have demonstrated that you will be unfit to attend a hearing. In particular, the certification dated is only in relation to your incapacity to work, and provides no opinion regarding your capacity to participate in a hearing.
    The Tribunal will carefully consider any additional certification by your treating doctor which outlines in detail the nature and history of your medical condition, your future prognosis and the reasons why you would be unable to appear before the Tribunal…’

11. The review applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear.

12. On 18 February 2016, the Tribunal wrote to the applicants informing them that they have failed to appear at the scheduled hearing and that the presiding member decided to grant the applicants additional time until 23 February 2016 to provide documents requested in the hearing invitation letter of 20 January 2016. They have failed to respond to this invitation.

13. The Tribunal notes that under subsection 362B(1) it has a discretion, which is confirmed by subsection 362B(2), to re-schedule the review applicant’s appearance before it, or to delay its decision on the review in order to enable the review applicant’s appearance before it to be re-scheduled. The Tribunal has considered whether it would be appropriate for it to exercise this discretion in the review applicant’s favour but, given the findings set out below, the Tribunal determined that in the circumstances of this particular case there would be no value in doing so. 

14. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. The Tribunal also considered whether, in the circumstances of this case, the evidence that the first named applicant meets the relevant requirements for the visa grant are likely to be forthcoming, whether the review applicants had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicants.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

15. The Tribunal has had regard to the fact that the visa applications were refused by the Department on 26 June 2015. The review applicants submitted a copy of the primary decision record with the review applications. As a result, the Tribunal observes that the review applicants have been aware for more than 7 months that the visa applications were refused because the Department had found that the first named visa applicant did not satisfy cl.572.223 (2) and that the review applicants had a fair opportunity to provide the relevant information.

16. On 10 July 2015, the Tribunal acknowledged the receipt of the review applications and with the same letter invited the applicants to provide material or written arguments for the Tribunal to consider. No documents or submissions were submitted to the Tribunal by the applicants.

17. In addition, with its letter of 20 January 2016 the Tribunal invited the applicants to provide a copy of the first named applicant’s current Certificate of Enrolment (COE) or documents that show 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. She has failed to provide any documents or submissions. The applicants have failed to attend the tribunal hearing and give evidence in support of their case. The applicants did not contact the Tribunal to explain their non-appearance.

18. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

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 first named applicant met the criterion in cl.572.223(2). However, the issue now is whether, at the time of this decision, the first named 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 first named 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. There is no evidence before the Tribunal that the first named 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.

23. Furthermore, there is no evidence that the first named 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 first named 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. For these reasons, the decision under review must be affirmed.

25. The Tribunal also affirms the decision not to grant the second named applicant a Class TU visa as there no evidence that the second named applicant meets the secondary visa criteria to be a member of the family unit of a person who holds a subclass 572 visa and there is no evidence that he meets the primary visa criteria in his own right.

    DECISION

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

    Antonio Dronjic

    
    

    Member