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

1. 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).

2. 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).

3. 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.

4. 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.

5. 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.

6. 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.

7. 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. 

8. No material or submissions were received.

9. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

11. 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; and

    g.IELTS refers to the International English Language Testing System.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Enrolment

12. 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.

13. 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;

14. 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

15. No current COE has been provided despite being requested in writing by the tribunal.

16. 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. 

17. 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.

18. 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.

19. 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.

20. The tribunal provided the applicant with additional time in which provide additional material.  No additional material has been received.

21. It is mandatory criterion in the circumstances that the applicant is enrolled in a specified type of principal course, or has an offer of enrolment in such a course.  On the evidence, the applicant does not have such an enrolment or offer and does not meet cl.572.231 and its equivalents for other subclasses.

22. On the evidence there has been no relevant failure of electronic transmission and the applicant applied for the visa onshore.  The applicant must therefore provide a current COE in order to meet cl.572.222 and its equivalent for each alternative subclass.

23. The applicant has not done so and does not meet cl.572.222 and its equivalents for other subclasses.

    Schedule 5A requirements

24. Separately, and in addition, in order to ventilate the issue decided by the delegate and which was the subject of the tribunal’s invitation to provide information, the tribunal has considered the requirements of Schedule 5A against the applicant’s most recently proposed study in the VET sector.

25. As suggested in the tribunal’s letter, cl.572.223(1A) does not apply as the applicant was not enrolled in and did not propose a course at the advanced diploma level.

26. The applicant must therefore give evidence in accordance with the requirements set out in Schedule 5A.

27. 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.

28. In this case, the applicant holds a passport of the Vietnam.  The assessment level specified in the relevant instrument for a holder of such a passport for Subclass 572 (the subclass for the applicant’s principal course) is assessment level 3, which is also the highest assessment level to which the applicant is subject.

29. The evidentiary requirements for this assessment level for Subclass 572 are set out in Part 4 of Schedule 5A.

    Financial capacity

30. At the very least, Item 5A408 requires the applicant to disclose funds for travel costs for a one way flight to Vietnam.

31. On the evidence, no funds have been disclosed in the name of an acceptable individual where evidence has been given that that individual has a regular income sufficient to accumulate the amount of funding being provided.

32. The applicant has not given evidence in accordance with Item 5A408.

33. On the basis of the above, the applicant has not given evidence in accordance with the applicable Schedule 5A requirements and therefore does not satisfy cl.572.223(2)(a).

34. 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.

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

    DECISION

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

    Adrian Ho
    Member