1510613 (Migration) - [2016] AATA 3628

1510613 (Migration) [2016] AATA 3628 (6 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Palwinder Singh Rai
CASE NUMBER:  1510613
DIBP REFERENCE(S):  BCC2015/1562179
MEMBER:Adrian Ho
DATE:6 April 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 06 April 2016 at 6:00pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 July 2015 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 29 May 2015. At the time of lodgement, Class TU 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); 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).
In the present case, the delegate assessed the applicant against the criteria for a Subclass 573 visa on the basis of enrolment in a higher education course. The visa was refused because the applicant did not provide evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant, as required by cl.573.223(2)(a) of Schedule 2 to the Regulations
The applicant appeared before the Tribunal on 6 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
On the morning of the hearing, the applicant submitted a note from a doctor stating that he had back pain and muscle pain. He accepted a tribunal offer to appear by telephone instead, and he made his appearance in that way.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Where used in this decision:
a.COE refers to Certificate of Enrolment;
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;
f.Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and
g.IELTS refers to the International English Language Testing System.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant was enrolled in a bachelor of business course. The subclass considered by the Department was appropriately Subclass 573.
The applicant informed the tribunal at hearing that both COEs have since been cancelled and that he has no current COE…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1510613 (Migration)

Details

AGLC: 1510613 (Migration) [2016] AATA 3628
Case: [2016] AATA 3628
Decision Date: 6 April 2016

CaseChat Overview and Summary

The Tribunal considered an appeal against the decision of the Department of Immigration and Border Protection to refuse a Student (Temporary) (Class TU) visa to the applicant. The applicant was enrolled in a Bachelor of Business course, and the Department had assessed the application under Subclass 573. The primary issues were whether the applicant met the requirements of cl.573.222 and its equivalents for other subclasses, which necessitate the provision of a Certificate of Enrolment (COE) related to a course of study, and whether the applicant had provided evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant, as required by cl.573.223(2)(a) of Schedule 2 to the Regulations.

The Tribunal determined that the applicant had failed to provide a current COE, which is a mandatory criterion for all subclasses of the Class TU visa except Subclass 580. The Tribunal also found that the application for a Subclass 580 visa was not valid because the applicant had not used the appropriate form, Form 157G. Furthermore, the Tribunal noted that the applicant had no current COE at the time of the hearing and had no current enrolment in a course of study. As the applicant did not meet the mandatory criterion of providing a current COE, the Tribunal found that the criteria for the grant of a Subclass 573 visa were not met. Consequently, the Tribunal affirmed the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.

The Tribunal's decision was based on the applicant's failure to meet the mandatory criterion of providing a current COE, as required by cl.573.222 and its equivalents for other subclasses. The Tribunal found that the applicant's lack of a current COE, coupled with the absence of any evidence of current enrolment in a course of study, meant that the applicant did not meet the requirements for the grant of a student visa under any subclass. The Tribunal's decision was in accordance with the Migration Regulations 1994 and relevant provisions of Schedule 5A, which outline the necessary evidence for the highest assessment level for the applicant, including English language ability and financial capacity.

In summary, the Tribunal affirmed the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa due to the applicant's failure to meet the mandatory criterion of providing a current COE and the absence of current enrolment in a course of study. The Tribunal's decision was based on the provisions of the Migration Regulations 1994 and the relevant assessment criteria outlined in Schedule 5A.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Where used in this decision: a.COE refers to Certificate of Enrolment;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; f.Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; andg.IELTS refers to the International English Language Testing System.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant was enrolled in a bachelor of business course. The subclass considered by the Department was appropriately Subclass 573. The applicant informed the tribunal at hearing that both COEs have since been cancelled and that he has no current COE at present which has not been cancelled, and no current enrolment in a course of study. An issue in the present case is whether the applicant meets the requirements of cl.573.222 and its equivalents for other subclasses, which require the applicant to give to the Minister or the tribunal a COE relating to a course of study. A further issue is whether the applicant has provided evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant, as required by cl.573.223(2)(a) of Schedule 2 to the Regulations, and its equivalent for other subclasses. 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. Subclass 580 At hearing, the applicant was informed that the Subclass 580 visa is for student guardians; where it is a requirement that the person will accompany a relative to or in Australia who is a student, and in order to make a valid application for a Subclass 580 visa Form 157G had to be used (Item 1222(1)(ca) of Schedule 1) and on the evidence it was not and therefore it appeared the application was not a valid application for a Subclass 580 visa. The applicant confirmed that Form 157G was not used and a Subclass 580 visa was not sought, and was informed that the application appeared not to be a valid application for that subclass in any event, and the tribunal so finds. For the remainder of this decision, a reference to subclasses or all subclasses of the Class TU visa does not include a reference to Subclass 580.Enrolment At hearing, the applicant was:a.Informed that in that invitation the tribunal had requested that the applicant provide a copy of a current COE, which was required for the grant of a student visa;b.Informed that in the circumstances of the case it was a mandatory criterion for all subclasses of the Class TU visa except Subclass 580 that the applicant give to the Minister (and now to the Tribunal) a COE which relates to undertaking a course of study, unless a failure of electronic transmission has prevented an education provider from sending a COE and the applicant needs to travel urgently, or the application was made on form 157E, which form may only be validly used if the applicant made the application while outside Australia and is subject to a highest assessment level of 1: cl.1222(1)(a)(ii) of Schedule 1 and IMMI 14/017;c.Informed that the mandatory criterion was contained in cl.573.222 and its equivalent for each alternative subclass;d.Informed that in the invitation to the hearing the tribunal had requested that the applicant provide a copy of one or more COEs 7 days prior to the hearing; e.Informed that to meet the mandatory criterion, any COE had to be current and a cancelled COE was insufficient[1].[1] Singh v MIAC [2009] 236 FLR 384

Decision

Reasons for decision

For the reasons above, the Tribunal finds that criteria for the grant of a Subclass 573 visa are not met. As there is no evidence the applicant is eligible to be granted a student visa of another subclass, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.Adrian HoMemberATTACHMENT – Extracts from the Migration Regulations 1994573.223(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 (1A) or (2).(1A)If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:(a)the applicant gives the Minister evidence that the applicant has:(i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and(ii)educational qualifications required by the eligible education provider; 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 sufficient funds to meet:(i)the costs and expenses required to support the applicant during the proposed stay in Australia; and(ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.(2)If subclause 573.223(1A) does not apply:(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.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.Adrian HoMemberATTACHMENT – Extracts from the Migration Regulations 1994573.223(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 (1A) or (2).(1A)If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:(a)the applicant gives the Minister evidence that the applicant has:(i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and(ii)educational qualifications required by the eligible education provider; 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 sufficient funds to meet:(i)the costs and expenses required to support the applicant during the proposed stay in Australia; and(ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.(2)If subclause 573.223(1A) does not apply:(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.