AVALA (Migration)

[2018] AATA 994

AVALA (Migration) [2018] AATA 994 (15 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ARUN SAI AVALA

CASE NUMBER:  1617624

DIBP REFERENCE(S):  BCC2015/2228340

MEMBER:P. Wood

DATE AND TIME OF

ORAL DECISION AND REASONS:        15 February 2018 at 2:10 pm (VIC time)

DATE OF WRITTEN RECORD:               17 March 2018

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal affirms the decision under review.

Statement made on 17 March 2018 at 12:59pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Current certificate of enrolment not provided to the Tribunal – Current enrolment prerequisite not met

LEGISLATION
Migration Regulations 1994, Schedule 2 cls 573.223. 576.229

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 October 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 573 visa under the Migration Act 1958 (the Act).

2. At the hearing on 15 February 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. You applied for a visa to undertake study in Australia on 4 August 2015.  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 applied 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 of study (subclass 570 to 575), or whether the applicant has the support of the relevant Minister (subclass 576).

4. The delegate in your case, refused to grant you the visa on the basis that you did not satisfy the requirements of clause 573.223(1)(a) of schedule 2 to the Migration Regulations, because the delegate was not satisfied that you were a genuine student who intends genuinely to stay in Australia temporarily.

5. You appeared before the tribunal today to give evidence and present arguments.  While the issue before the delegate was whether you are a genuine temporary entrant, the issue before the tribunal now, is whether at the time of this decision, you meet the enrolment requirement for a student visa.

6. The tribunal discussed with you and explained clearly to you, that you were refused a visa by a delegate of the Minister, because the delegate found that you did not meet the genuine temporary entrant criteria.  The tribunal confirmed with you that you understood that you were refused a visa on this basis.  The tribunal however, explained to you and confirmed that you understood that the determinative issue before the tribunal today, was whether you met the enrolment criteria.

7. In your sworn evidence to the tribunal today, you told the tribunal that you were not presently enrolled in an appropriate course of study.  With limited exceptions, none of which are relevant to the present case, the regulations require for all subclasses of a student visa, that at the time of decision, an applicant must be in 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 for the subclass at the time of application.

8. On 17 January 2018, the tribunal wrote to you, inviting you to attend a hearing, namely the hearing at which you now appear.  In the letter to you, dated 17 January 2018, you were requested to provide a copy of your current certificate of enrolment to the tribunal, at least seven days before the scheduled date of today’s hearing.  A copy of this certificate was not provided.

9. At the hearing today, you were again requested to provide the tribunal, a copy of your current certificate or confirmation of enrolment.  You did not do so.

10. In your sworn evidence before the tribunal, you confirmed that you were last enrolled in a registered course of study in late 2016.  You further confirmed in your sworn evidence that you are not currently enrolled, nor do you have an offer of enrolment in a course of study in Australia.

11. Accordingly, there is no evidence before me that you are now enrolled in an applicable course of study. Therefore, the current enrolment prerequisite which exists for all student visa subclasses is not met.

12. Furthermore, there is no evidence that you meet the criterion for either of the remaining subclasses of class TU.  You are neither supported by the relevant Minister, as is required by clause 576.229, nor have you made the visa application on the basis of being a student guardian.

13. For these reasons, I conclude that the decision under review should be affirmed.

14. The tribunal affirms the decision not to grant you a Student (Temporary) (Class TU) visa.

15. This decision is made at 2.10 pm on 15 February 2018.

16. This hearing is now concluded

    DECISION

17. The Tribunal affirms the decision under review.

    P. Wood
    Senior Member