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

1. 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).

2. 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).

3. 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).

4. The applicant appeared before the Tribunal on 26 October 2016 to give evidence and present arguments.

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

6. 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

7. 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.

8. 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.

9. 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

10. 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.

11. 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.

12. 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

13. In the invitation to the hearing the tribunal had requested that the applicant provide a current COE seven days prior to the hearing.

14. No current COE has been provided.

15. The requirements of both cl.572.222 and cl.573.231, and their equivalents for other subclasses, were explained to the applicant at hearing.

16. The applicant gave evidence at hearing that he did not have current enrolment or an offer of enrolment in any relevant course of study and had no current COE for any relevant course of study.  He gave evidence that his student visa application was refused in 2014 and did not dispute that the bridging visa A he said he held from that time did not prevent him from studying. 

17. He explained that he had not studied in more recent years.  When asked why he had not been studying, and when it was put to him that having current enrolment, and providing a current COE, were separate mandatory criteria for the grant of a student visa, he indicated he was not willing to pay large fees to education providers if he did not know if he would be granted the visa.  He maintained that position despite being told that the provision of a COE which had not been cancelled and had not expired was a mandatory criterion for the grant of the visa.

18. The applicant did not indicate in his evidence that he would be seeking enrolment and an associated COE.

19. No further time was sought by the applicant, and the tribunal sees no reason to delay its decision.

    572.231

20. Based on the applicant’s oral evidence at hearing, the tribunal finds that the applicant has no relevant enrolment or offer of enrolment in a relevant principal course of study, or indeed any course of study, and does not meet cl.572.231 and its equivalents for other subclasses.

    572.222

21. Based on the applicant’s oral evidence at hearing, the tribunal finds that the applicant has not studied in recent years since the visa was refused and has not maintained enrolment in any course of study relevant to any subclass, and in particular, has not maintained enrolment in the courses the subject of the COEs originally submitted with the visa application (DIBP file ff.55, 57, 59).

22. As suggested at hearing, the applicant not having provided a fresh and current COE, the tribunal finds that the applicant’s original enrolment in those courses has been cancelled by the providers that issued the COEs.

23. On the evidence there has been no relevant failure of electronic transmission; the applicant indicating that he is not willing to expend money to obtain an enrolment and a COE.

24. The applicant confirmed that he applied for the visa onshore.  The tribunal finds the application was made onshore and not offshore, using form 157E.

25. The applicant must therefore provide a current COE in order to meet cl.572.222 and its equivalent for each alternative subclass.

26. As no current COE has been provided, the tribunal finds the applicant does not meet cl.572.222 and its equivalent for each alternative subclass.

27. 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 (as discussed above).

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

    Genuine Temporary Entrant

29. The tribunal had a long discussion with the applicant regarding the criterion in cl.572.223(1)(a) and its equivalents for other subclasses, and a long discussion regarding the considerations laid out in Direction 53.

30. However, it was made clear to the applicant that the tribunal could affirm the Department’s decision based on a failure to meet cl.572.222 and cl.573.231, both of which are mandatory visa criteria, and the tribunal was not restricted only to the criterion in cl.572.223(1)(a).

31. 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

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

    Adrian Ho
    Member