1517222 (Migration) - [2016] AATA 4651

1517222 (Migration) [2016] AATA 4651 (7 November 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Thi Hai Phan
CASE NUMBER:  1517222
DIBP REFERENCE(S):  ABD2015/105385 BCC2015/2674001
MEMBER:Adrian Ho
DATE:7 November 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 07 November 2016 at 4:02pm

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 27 November 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 9 November 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).
In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in VET sector courses. 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.572.223(2)(a) of Schedule 2 to the Regulations.
By letter dated 20 October 2016, the Tribunal wrote to the applicant pursuant to s.359(2) to provide information relevant to the requirements of Schedule 5A, and also information demonstrating that the applicant had a current certificate or confirmation of enrolment (COE) in a relevant course of study which COE had not been cancelled or expired.
In the invitation the applicant was advised that, if the information was not provided in writing by the end of a prescribed period, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant has not provided the information within the prescribed period, or to date, and no contact has been received since the tribunal’s letter was dispatched. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.
The applicant was subsequently advised that the tribunal would delay the review till 24 August 2016 to allow more time for the provision of any further material.
No material or submissions…

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 1517222 (Migration)

Details

AGLC: 1517222 (Migration) [2016] AATA 4651
Case: [2016] AATA 4651
Decision Date: 7 November 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Student (Temporary) (Class TU) visa. The applicant sought review of the delegate's decision to refuse to grant the visa.

The primary legal issues before the Tribunal were whether the applicant met the mandatory criteria for the visa, specifically concerning enrolment in a principal course of study and the provision of a current Confirmation of Enrolment (COE). The Tribunal was required to determine if the applicant was enrolled in a course that was a principal course for the relevant visa subclass, and if a valid and current COE had been provided to the Minister or the Tribunal.

The Tribunal reasoned that, with limited exceptions not applicable to the applicant, the Migration Regulations require an applicant to be enrolled in, or have an offer of enrolment in, a principal course of study at the time of the decision. Furthermore, a mandatory criterion for most Class TU visas is the provision of a current COE, unless specific exceptions related to electronic transmission failures or application forms apply. The Tribunal found no evidence that the applicant was an eligible higher degree student, exchange student, or non-award student. Crucially, the Tribunal was not satisfied that the applicant had provided a current COE, as the original COEs were not proven to be still valid and the applicant had not provided a new current COE despite written requests. The Tribunal was also not satisfied, on the evidence, that the applicant had attended classes or completed the stated courses. As the applicant had not met these mandatory criteria, the Tribunal affirmed the delegate's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Where used in this decision: a.COE refers to Confirmation 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.ELICOS refers to English Language Intensive Courses for Overseas Students;e.A reference such as ‘5Axxx’ refers to the corresponding item or clause of Schedule 5A to the Migration Regulations; f.The Department or Immigration refers to the Department of Immigration and Border Protection; andg.IELTS refers to the International English Language Testing System.CONSIDERATION OF CLAIMS AND EVIDENCEEnrolment 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. Further, 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; 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 No current COE has been provided despite being requested in writing by the tribunal. The tribunal is not satisfied that the original COEs provided at DIBP file ff.12-13 are still current and were not cancelled, for example, due to non-payment of fees or failure to attend classes. On the evidence, the tribunal is not satisfied the applicant attended classes and completed the certificate in business to end in April 2016 and continued into the diploma of management, which was to end yesterday. On the evidence, the visa application was made in Australia and there has been no failure of electronic transmission had prevented a provider from sending a COE. On the evidence, the applicant does not have any relevant enrolment or offer of enrolment that could satisfy cl.572.231 and its equivalents, and no current COE, the giving of which could satisfy cl.572.222 and its equivalents.

Decision

Reasons for decision

For these reasons, the decision under review must be affirmed. DECISION The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.Adrian HoMember

Ratio Decidendi

Legal Principle Established

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