Bas (Migration)

[2019] AATA 1431

Bas (Migration) [2019] AATA 1431 (16 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ufuk Bas

CASE NUMBER:  1701329

DIBP REFERENCE(S):  BCC2015/2488132

MEMBER:Tim Connellan

DATE:16 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 16 January 2019 at 2:15pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – evidence of enrolment not provided – waived right to appear – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 572.223, 576.229

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 12 January 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 27 August 2015. The delegate 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 Regulations because the delegate was not satisfied the applicant genuinely intended to stay in Australia temporarily.

3. The applicant was represented in relation to the review by his registered migration agent.

4. The applicant waived his right to appear before the tribunal and by email dated 21 March 2018 asked the tribunal to make a decision on the material available to it.

5. While the issue before the delegate was whether the applicant was a genuine temporary entrant, a preliminary issue for the Tribunal is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

6. With limited exceptions, none of which are relevant to the present case, the Regulations require for all subclasses of the student visa that, at the time of decision, an applicant must be enrolled in, will be the subject of a current offer of enrolment in, a course of study that is a principle course, and is of a type specified for the subclass at the time of application.

7. On 27 February 2018 a written invitation to attend a hearing was sent to the applicant via his migration agent. In the letter accompanying the invitation the applicant was asked to provide a range of evidence including a copy of his current Certificate of Enrolment (CoE) which it stated was required for the grant of a student visa. A copy of a current CoE has never been provided.

8. Accordingly, there is no evidence that the applicant is enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore the current enrolment prerequisite for all student visa subclasses is not met.

9. Furthermore, there is no evidence that the applicant meets the criteria for either of the remaining subclasses of class TU. The applicant is neither supported by the relevant minister is required by cl.576.229, nor has he made the visa application on the basis of being a student Guardian.

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

    DECISION

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

    Tim Connellan
    Member