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

1. 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).

2. 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).

3. 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

4. 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.

5. 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.

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

7. 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

8. The applicant was enrolled in a bachelor of business course.  The subclass considered by the Department was appropriately Subclass 573.

9. 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.

10. 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.

11. 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.

12. 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

13. 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.

14. 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.

15. 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

16. 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

17. The applicant conceded at hearing that he did not have a current COE which had not expired and had not been cancelled, that he had no current enrolment in any relevant course, and that he has not been studying.

18. As suggested to him at hearing, the applicant does not meet cl.573.222 and its equivalent for each other subclasses.

    Schedule 5A evidence

19. On the evidence before the Tribunal, the applicant in this case has not at any relevant time been an eligible higher degree student with a corresponding COE and cl.573.223(1A) does not apply and cl.573.223(2)(a) must be met.

20. The applicant was advised that it was an issue as to whether the evidence required to be given in accordance with Schedule 5A was met, and in order to identify the relevant Part of Schedule 5A at least one current COE was needed, which would indicate which education sector the applicant proposed to study in.

21. As the applicant has no current COE, in order to give his case meaningful consideration against the criterion found not to be met by the delegate, the tribunal asked him to indicate which course he intended to study.

22. He said he intended to study the bachelor of business in the higher education sector.

23. In order to explore the issue which led to his visa refusal, the tribunal proceeded on that basis.

24. The assessment level that applies to the applicant is the highest assessment level at the time of application for the relevant course of study for the subclass of visa: r.1.42.  ‘Assessment level’, and ‘highest assessment level’ is defined in r.1.03.  ‘Assessment level’ means the level of assessment specified by the Minister for a kind of passport.  The highest assessment level for a single course of study that is a registered course, is the assessment level for that course of study.  If the applicant is undertaking 2 or more registered courses of study, the highest assessment level is the assessment level for those courses (excluding any ELICOS course) that has the highest number.

25. In this case, the applicant gave evidence of holding a passport of India and of no other country.  The assessment level specified in the relevant instrument for a holder of such a passport for Subclass 573 is assessment level 3, which is also the highest assessment level to which the applicant is subject.

26. The evidentiary requirements for this assessment level for Subclass 573 are set out in Part 5 of Schedule 5A.

27. The applicant provided a copy of the delegate’s decision to the tribunal in which the delegate noted that in June 2015, the Department sought evidence relevant to Schedule 5A from the applicant and gave him 28 days to provide that evidence. 

28. He provided no evidence to the Department.

29. At hearing he was informed that his visa application was refused because he had not provided the evidence requested, that he was required to provide by cl.573.223(2)(a) and its equivalents for other subclasses.

30. He has provided to the tribunal no evidence relevant to the items of Schedule 5A that apply to him such as item 5A507 and 5A508.

31. The tribunal finds the applicant has not given evidence in accordance with the requirements mentioned in Schedule 5A for English language proficiency for the highest assessment level for the applicant.

32. Similarly, and quite separately, the applicant has not given any evidence related to financial capacity.  The tribunal finds the applicant has not given evidence in accordance with the requirements mentioned in Schedule 5A in relation to his financial capacity for the highest assessment level for the applicant.

33. At hearing it was put to him that it was now around 10 months ago that the Department had requested that evidence from him and the tribunal had again requested that evidence to be submitted 7 days before the hearing.

34. In the roughly 10 months the applicant has had, on his own evidence at hearing, he has neither studied nor provided evidence that could satisfy the requirements of cl.573.223(2)(a) by reference to the relevant items of Schedule 5A.

35. For these reasons, the applicant has not given the evidence required to be given by cl.573.223(2)(a) and as laid out in Schedule 5A and he does not meet these criterion.

    Request for more time

36. The applicant, at hearing, sought more time in which to provide the evidence in accordance with Schedule 5A and to obtain and provide a current COE.

37. The following observations were put to the applicant based on the copy of the delegate’s decision he gave to the tribunal:

    a.as early as June 2015 the Department had requested the evidence that related to Schedule 5A;

    b.The department refused the visa because he did not give the evidence that was requested;

    c.He should have been on notice by the time the Department refused the visa in July 2015 that his lack of provision of evidence was the reason for the refusal;

    d.Around 10 months had passed and the applicant appears not to have done anything to obtain the evidence required;

    e.This is so even though the tribunal requested him to provide a current COE, and evidence as to both English language and financial capacity 7 days before the hearing.

38. For the reasons above, the tribunal informed the applicant that he had had around 10 months to arrange the necessary evidence and that during this time he should have been clearly aware that his visa had been refused because he had failed to give the evidence requested by the Department.  He was informed that the tribunal considers that he has had more than a reasonable amount of time in which to furnish evidence which was clearly identified for him. 

39. It was observed that it appeared that he had not started to gather any evidence in the 10 months since it was requested of him by the Department.

40. He asserted that he had been sick in the last two weeks before the hearing and his father had been sick since in 2015 through to the present.

41. He was informed that nonetheless he had now had the better part of a year to provide evidence the provision of which was mandatory for the grant of the visa and had not accomplished that, and the tribunal had little reason to believe that if further time was provided that the evidence would be forthcoming.

42. In these circumstances he was informed that the tribunal would not now afford him additional time in which to commence to gather or provide the evidence.

    Conclusion

43. 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

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

    Adrian Ho

    
    

    Member

    ATTACHMENT – Extracts from the Migration Regulations 1994

    573.223(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.