1516609 (Migration)

[2016] AATA 4529

1516609 (Migration) [2016] AATA 4529 (11 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Phuong Nam HUYNH

CASE NUMBER:  1516609

DIBP REFERENCE(S):  CLF2014/105462

MEMBER:Gina Towney

DATE:11 October 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 11 October 2016 at 5:12pm

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 13 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 visa applicant applied for the visa on 31 July 2014. The courses listed were a Certificate IV in Business, from 18 August 2014 to 20 February 2015; a Diploma and an Advanced Diploma of Management, from 23 February 2015 to 19 February 2016, and a Bachelor of Business, from 14 March 2016 to 31 December 2018.

3. In response to question 35 of the application form, regarding a statement setting out reasons for choosing to study in Australia the applicant recorded the following (in summary): the applicant completed his studies in Information Technology in Vietnam, and worked in the industry and as a sole trader for more than 10 years. The applicant would like to set up an Information Technology Sales and Service company, but realised he did not have enough experience and also required effective English language skills in the globalised society. The applicant chose to study in Australia and at the Wentworth Institute and Holmes Institute due to the friendly study environment, flexible course structure and high quality of teaching.  The applicant is looking forward to finishing his degree in Australia and going back to Vietnam to start his own business.

4. In a decision dated 31 October 2014 the delegate refused to grant the Visa on the basis that the applicant did not satisfy cl. 573.227.  More specifically, the delegate found that the applicant was the holder of a Visitor Visa (FA 600) at the time of application, (being 28 July 2014) and based on his assessment level he must establish exceptional reasons for the grant of the Visa.  The delegate also recorded that on 1 August 2014 the applicant was invited to provide exceptional reasons for the grant of the Visa, but had not responded asset the date of decision (being 31 October 2014). 

5. The applicant then appealed to the Tribunal and provided a copy of the departmental decision.  On 7 May 2015 a decision was made by the Tribunal (a differently constituted) which recorded that the applicant met cl. 573.211.  The same decision recorded that cl.573.227 did not apply to the applicant, however it was found that this did not form part of the Tribunal’s directions and that the department was not bound by it.  The decision was remitted to the department for further consideration. 

6. In a second Departmental decision, dated 13 November 2015, the delegate refused to grant the visa on the basis that the applicant did not satisfy cl. 573.227. More specifically, once again the delegate recorded that the applicant was the holder of a Visitor Visa (FA 600) on the date of application, and based on his assessment level, he must establish exceptional reasons for the grant of the Visa.  The delegate recorded that on 26 August 2015 the applicant was invited to provide exceptional reasons for the grant of the Visa, but had not done so as at the date of decision.

7. The applicant appeared before the current Tribunal on 4 October 2016 to give evidence and present arguments.  At the hearing the applicant provided a Certificate of Enrolment and an Offer of Admission, both in relation to a Bachelor of Business with course dates from 14 March 2016 to 31 December 2018.

8. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.  The applicant was represented in relation to the review by his registered migration agent.   The Tribunal has not provided a transcript of the hearing, and is only included points it finds to be most relevant to the application.

9. When the Tribunal questioned the applicant at the hearing regarding his studies he said that he had not started any of the courses listed in his Student Visa application and he was not currently studying or subject to an offer of enrolment.  In addition, when asked to provide the full name of courses that he had previously enrolled in, he was unable to provide the full name of the courses, or the correct commencement dates for the courses.  At the hearing the Tribunal raised that an applicant must be studying or subject to an offer of enrolment in order to be granted a Student Visa.

10. When the Tribunal questioned the applicant as to why he was not currently studying or subject to an offer of enrolment, and why he had not started or completed the courses listed in his Student Visa application, the applicant gave a variety of answers. That is, the applicant initially said that the department had made errors in assessing his original application and had assessed him against the wrong level. When the Tribunal pointed out that the applicant had failed to commence his original course of study at a stage when the department had not yet assessed him against the wrong assessment level, the applicant said he did not know what had prevented him from studying.

11. Later in the hearing the applicant said he did not study because that he thought he needed a Student Visa to obtain a Certificate of Enrolment. However, when the Tribunal pointed out that the applicant had previously been granted a Certificate of Enrolment without being granted a Student Visa, the applicant then said he was told he was unable to study without a Student Visa.   That is, the applicant indicated he may have been able to obtain a Certificate of Enrolment, but understood that he was unable to study without a Student Visa. Asked whether he had checked this information with the department, the applicant indicated he had not.

12. Questioned further, the applicant also said that his education provider told him he could not study without a Student Visa, but when the Tribunal raised doubts with this evidence, the applicant said he was not sure how he formed the opinion that he was unable to study without a Student Visa

13. During the hearing the Tribunal also pointed out that though the applicant stated he believed he was unable to study because his Student Visa had been refused by the Department, his course started on 18 August 2014 and his Student Visa was only refused on 31 October 2014. The Tribunal pointed out that this indicated the applicant did not study for a period of more than two months, even though his Student Visa had not been refused.

14. Later in the hearing the applicant’s migration agent submitted that although the applicant was not told he could not study he was also not told that he could study.  The migration agent also submitted that the applicant may not have commenced his studies, on 18 August 2014, because he had been asked for more information by the Department. In addition the migration agent submitted that once the applicant was placed on a Bridging Visa it was likely that the provisions of his previous FA600 visa applied, and if so it would have been a breach of the visa if the applicant was to study for more than three month period.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue before the delegate was whether the applicant met the criterion in cl.573.227. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a Student Visa.

17. 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.

18. The applicant’s original Student Visa outlines his previous enrolments, however at hearing the applicant gave evidence that he did not commence his study in Australia, and he was not currently studying or subject to an offer of enrolment. Therefore there is no evidence before the Tribunal that the 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.

19. 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.

20. For these reasons, the decision under review must be affirmed.

    DECISION

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

    Gina Towney
    Member