AMARJIT SINGH (Migration)

[2017] AATA 2768

AMARJIT SINGH (Migration) [2017] AATA 2768 (14 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amarjit Singh .

CASE NUMBER:  1603109

DIBP REFERENCE(S):  BCC2015/3217726

MEMBER:David Barker

DATE:14 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 14 December 2017 at 1:18pm

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 17 February 2016 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 30 October 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. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl cl.572.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because they were not satisfied the applicant intends to stay temporarily in Australia.

4. The applicant appeared before the Tribunal by video conference from South Australia on 14 December 2017.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue before the delegate was whether the applicant met the criterion in cl.572.223. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

7. 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.

8. The Tribunal put particulars of  information, from a recent check of the  Provider Registration and International Student Management System (PRISMS) to the applicant, pursuant to s.359AA of the Act, after first explaining to him this information could provide the reason, or part of the reason for affirming the decision under review.  The Tribunal explained to the applicant that he could request time to consider his response and that the Tribunal would consider any such request. 

9. The  particulars of the information put to the applicant were that he had enrolled in the following courses but the enrolment was subsequently cancelled:

   ·    Certificate III in Retail Bakery, which was to run from October 2015 to October  2016 – but the enrolment was cancelled in April 2016 due to non-payment of fees;

   ·    Advanced Diploma of  Business, which was to run from September 2014 to August 2015 – but the enrolment was cancelled in October 2014 due to non commencement of studies.

10. The Tribunal explained to the applicant that this information was relevant because it appears to indicate he is not currently enrolled in a course and had not undertaken any studies since 2014.  The Tribunal explained that in combination with other gaps in his studies the concern arises that he is using Student visas to maintain his residency in Australia.  The Tribunal explained it was to find the applicant was not enrolled in a course, or did not intend to genuinely remain in Australia temporarily it will affirm the decision to refuse the Student visa.

11. The applicant told the Tribunal he did not want time to consider his response and then confirmed he was not currently studying and is not enrolled in any course.  Further to this he said he went to India and at that time was studying a Bachelor of Cookery.  He said the education provider told him he had to change this course because there were insufficient students to maintain the course.  He said they then asked him to pay money for a different course he enrolled in, but they did not provide sufficient time for him to complete that course.  He said he then applied for a further course, but then the Department refused his Student visa application, so he stopped study from that point in time.  He said he also had problems with migraine and depression.

12. 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.

13. 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.

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

    DECISION

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

    David Barker
    Member