Brar (Migration)

[2017] AATA 2916

Brar (Migration) [2017] AATA 2916 (12 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amanjit Singh Brar

CASE NUMBER:  1609798

DIBP REFERENCE(S):  BCC2016/761699

MEMBER:Gabrielle Cullen

DATE:12 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 12 December 2017 at 10:30am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector visa – Genuine temporary entrant – Enrolment in a registered course – Applicant ceased enrolment after visa refusal – Lack of course progress

LEGISLATION

Migration Act 1958, ss 65, 359AA

Migration Regulations 1994, Schedule 2 cls 572.222, 572.223, 572.231, r 1.40A

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 9 June 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 23 February 2016 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. On 16 November 2017 the Tribunal wrote to the applicant, via his authorised representative and invited him to attend a hearing on 11 December 2017 in Perth. The applicant was invited to provide evidence, such as a copy of a current certificate of enrolment as required for the grant of a student visa and/or documents to demonstrate he was currently enrolled in a course or had an offer of enrolment in a registered course, as required for the grant of the student visa. He was also invited to provide a written statement as to whether he is a genuine temporary entrant by referring to Direction 53 which was attached.

4. In a submission dated 7 December 2017 the applicant’s representative outlined why the applicant is a genuine temporary entrant and why he disagrees with the decision of the Department.

5. The applicant appeared before the Tribunal by video on 11 December 2017 to give evidence and present arguments. His representative attended the hearing.

6. The Tribunal asked the applicant whether he is currently enrolled or under an offer of enrolment. He said he was not. He said he had not been since his visa was refused by the Department. The Tribunal then raised with the applicant via the process outlined in s.359AA that PRISMS records indicate he is not currently enrolled in a course, has not been since August 2016 and that the evidence indicates he is not under an offer of enrolment. It raised with him the relevance of this matter and that it may lead it to find he does not meet the enrolment criteria and genuine temporary entrant criteria. It raised with him that it may lead it to find he is not entitled to the grant of a student visa. The applicant confirmed he was not enrolled or under a current offer of enrolment and had stopped studying after the Department refused his application. It also asked him questions as to the genuine temporary entrant criteria and raised with him his as of concern his lack of course completions and course progress.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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.

10. Information from the Department’s electronic (PRISMS) records before the Tribunal indicates that the applicant is not currently enrolled in a course of study and he has not provided any evidence that he is subject to a current offer of enrolment. The applicant also confirmed he is not enrolled or under a current offer of enrolment. The evidence indicates that his enrolment ceased in 2016. The Tribunal has considered the applicant’s response as to why he is not enrolled but is of the view there is no evidence he is currently enrolled or under an offer of enrolment. On that basis, the Tribunal finds that the applicant does not satisfy cl.572.222 of Schedule 2 to the Regulations. Additionally, there is no evidence before the Tribunal that the first named 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.

11. 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.

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

    DECISION

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

    Gabrielle Cullen
    Member