1610612 (Migration) - [2016] AATA 4624

1610612 (Migration) [2016] AATA 4624 (27 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ajay Pal Singh Hundal
CASE NUMBER:  1610612
DIBP REFERENCE(S):  CLF2014/97494
MEMBER:Adrian Ho
DATE:27 October 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 27 October 2016 at 6:03pm

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 18 September 2014 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 11 July 2014 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).
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicant appeared before the Tribunal on 26 October 2016 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.The Department or Immigration refers to the Department of Immigration and Border Protection;
e.Direction 53 or the Direction refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and
f.IELTS refers to the International English Language Testing System.
CONSIDERATION OF CLAIMS AND EVIDENCE
Subclass 580
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.
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.
For the remainder of this decision, a reference to subclasses or all subclasses of the Class TU visa does not include a…

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 1610612 (Migration)

Details

AGLC: 1610612 (Migration) [2016] AATA 4624
Case: [2016] AATA 4624
Decision Date: 27 October 2016

CaseChat Overview and Summary

The applicant sought review of a decision not to grant a Student (Temporary) (Class TU) visa. The Tribunal first considered whether the application was valid for a Subclass 580 visa, which is for student guardians. The applicant confirmed that the required Form 157G was not used, and the Tribunal found the application was not valid for this subclass. Consequently, the Tribunal's consideration of the remaining subclasses of the Class TU visa excluded Subclass 580.

The primary legal issue before the Tribunal was whether the applicant met the enrolment requirements for a student visa at the time of the decision. This involved assessing whether the applicant was enrolled, or had a current offer of enrolment, in a principal course of study as specified for the relevant subclass, subject to certain exceptions for eligible higher degree, exchange, or non-award students. The Tribunal also considered the mandatory criterion requiring the applicant to provide a Confirmation of Enrolment (COE) relating to a course of study, which must be current and not cancelled, unless specific exceptions applied.

The Tribunal found that the applicant had not provided evidence of being an eligible higher degree, exchange, or non-award student. Furthermore, the applicant had been informed of the mandatory requirement to provide a current COE, and the Tribunal noted that a cancelled COE would be insufficient. Although the Tribunal did not need to make a final decision regarding a specific criterion (cl.572.223(1)(a)), it indicated that it considered the applicant did not genuinely intend to stay in Australia temporarily.

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

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.The Department or Immigration refers to the Department of Immigration and Border Protection; e.Direction 53 or the Direction refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; andf.IELTS refers to the International English Language Testing System.CONSIDERATION OF CLAIMS AND EVIDENCESubclass 580 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. 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. 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 The issue before the delegate was whether the applicant met the criterion in cl.572.223(1)(a). However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa. 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, the applicant was:a.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;b.Informed that the mandatory criterion was contained in cl.572.222 and its equivalent for each alternative subclass;c.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; d.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

Decision

Reasons for decision

Ultimately, the tribunal has not needed to make a decision regarding cl.572.223(1)(a), but indicates that it considers that the applicant does not intend genuinely to stay in Australia temporarily. 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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