Brohier (Migration)

[2017] AATA 2333

Brohier (Migration) [2017] AATA 2333 (7 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shayane Jeremiah Mark Brohier

CASE NUMBER:  1515896

DIBP REFERENCE(S):  BCC2015/2953822

MEMBER:Mara Moustafine

DATE:7 November 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 07 November 2017 at 1:33pm

CATCHWORDS

Migration – Student (Temporary)(Class TU) visa – Subclass 572 Vocational, Education and Training Sector – Not studying – Not enrolled in registered course – No current offer of enrolment

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 572.223, cl 570.232, cl 571.232, cl 572.231, cl 573.231, cl 574.231, cl 575.231, 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 10 November 2015 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 9 October 2015 to undertake study for a Diploma of Management (01/06/2015 to 29/05/2016) in Australia.

3. 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).

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

5. The applicant applied to the Tribunal for a review of this decision on 19 November 2015.

6. The applicant was represented in relation to the review by his employer, the Director of Team Western Australia at Domino’s.

7. The applicant appeared before the Tribunal by teleconference between Sydney and Perth on 7 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Anthony Tan.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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.

11. Ahead of the hearing the applicant’s employer and representative submitted to the Tribunal a submission and supporting documents regarding his nomination of the applicant under the Regional Sponsored Migration Scheme as he considered him the best candidate to take over the running of his business after he retires in a few years’ time.  He included an acknowledgement of his nomination application for the applicant dated 7 April 2016 and the applicant’s record of results for the Diploma of Leadership and Management (01/06/2015 to 15/11/2016. At hearing the applicant provided copies of academic transcripts relating to his studies for Bachelor of Business, Certificate IV in Hospitality, Diploma of Hospitality, Certificate IV in Accounting and Diploma of Leadership.

12. At the beginning of the hearing, the Tribunal outlined that to be eligible for the grant of a Student visa, an applicant had to either be studying or enrolled in a registered course of study or hold an offer of enrolment. The applicant told the Tribunal that he was not studying or enrolled. He said that he had completed the Diploma of Leadership and Management for which he had sought the Student visa under review on 15 November 2015. This was a requirement for sponsorship by Domino’s Pizza, where he had been working. He had not applied for another course while waiting for his review as there was no other requirement from the sponsor. He confirmed that he wished to work for Domino’s and was concerned that the sponsorship application had not yet been approved.

13. The Tribunal explained that the only matter before it was the grant of a student visa to the applicant.

14. 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.

15. 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.

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

    DECISION

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

    Mara Moustafine
    Member