1515899 (Migration)

[2016] AATA 4359

1515899 (Migration) [2016] AATA 4359 (5 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohamad Abdul Rahman

CASE NUMBER:  1515899

DIBP REFERENCE(S):  BCC2015/613289

MEMBER:Gabrielle Cullen

DATE:5 September 2016

PLACE OF DECISION:  Sydney

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

Statement made on 05 September 2016 at 4:26pm

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 12 November 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 25 February 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.573.223(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations) as no evidence had been provided to meet the Schedule 5A requirement for English language proficiency.

4. On 25 July 2016 the Tribunal wrote to the applicant and invited him to attend a hearing on 5 September 2016. The applicant was invited to provide evidence, such as a copy of his current certificate of enrolment as required for the grant of a student visa and documents to demonstrate he was currently enrolled in a course or had an offer of enrolment in a registered course, as required for the grant of the student visa. The applicant was also invited, among other things, to provide evidence of financial capacity and English proficiency.

5. The applicant appeared before the Tribunal on 5 September 2016 to give evidence and present arguments. He provided the results of an IELTS test dated 10 September 2015 indicating an overall band score of 6.0. The Tribunal outlined the requirement of enrolment or an offer of enrolment for the grant of the student visa. The Tribunal raised with him via the process outlined in s.359AA that the PRISMS records indicate that he is currently not enrolled in any course. It also raised with him via the process outlined in s.359AA that his enrolment in the Bachelor of Business (Accounting) ceased on 12 August 2015 as he notified cessation of studies. The applicant chose to answer orally at hearing following the methods of response being raised with him. He confirmed he was not enrolled in a course. He said he was studying a Bachelor of Engineering at UTS but he was excluded for a year in 2013 as he failed four subjects. He said he then enrolled in a Bachelor of Accounting at another education provider, and thought he would then transfer back to UTS to finish his Bachelor of Engineering. He said the reason he stopped studying was that he went overseas and then he was prevented by the education provider of returning for failure to re-enrol. He said he was then on a bridging visa and the decision by the Department to refuse his application was made while he was awaiting the results of his IELTS test. He said things were not going well after he returned and he had to go home for urgent reasons. He said he had depression. He said he had not studied since the end of 2014. He urged the Tribunal give him a positive decision as it is his dream to obtain a Bachelor of Engineering. He said he needs a higher degree and while he has a Diploma and Certificate IV this is not enough. He said he contacted UTS and the other education provider and they advised he needed a valid/substantive visa to be able to enrol as the course is two years.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue before the delegate was whether the applicant met the criterion in cl.572.223(2), of Schedule 2 to the Migration Regulations 1994 (the Regulations). However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

8. 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.

9. With his student visa application of 25 February 2015 the applicant provided a Certificate of Enrolment to study a Bachelor of Business (Accounting) which was cancelled on 12 August 2015. The applicant was invited by the Tribunal to provide evidence of current enrolment and a copy of his Certificate of Enrolment as required for the grant of a student visa. He has not provided evidence of any current enrolment other than the CoE provided in February 2015 as to the course referred to above. This CoE is not current. He also indicated at the hearing that he is not currently enrolled on under a current offer of enrolment when the Tribunal raised with him via s.359AA that PRISMS records indicate he is not currently enrolled.

10. The Tribunal has considered his evidence as to why he is not enrolled, however on the basis of the lack of evidence before me as to a current offer of enrolment or Certificate of Enrolment the Tribunal cannot be satisfied that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore the Tribunal finds that cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 is not met.

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.

    Gabrielle Cullen
    Member