CHOWRIMOOTOO (Migration)

[2017] AATA 2234

CHOWRIMOOTOO (Migration) [2017] AATA 2234 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Vicky Mairiza Christine CHOWRIMOOTOO
Mr JAYRAJ BUCKTAWAR

CASE NUMBER:  1516730

DIBP REFERENCE(S):  BCC2015/2468045

MEMBER:Mara Moustafine

DATE:8 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 08 November 2017 at 2:55pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – No evidence of current offer of enrolment

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 570.232, cl 571.232, cl 572.223, cl 572.231, cl 573.111, cl 573.231, cl 574.111, cl 575.111, cl 575.231, cl 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 18 November 2015 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 25 August 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 visas on the basis that the primary visa applicant (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 a genuine temporary stay in Australia.

4. The applicants appeared before the Tribunal on 8 November 2017 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. On 31 October 2017 the applicant provided to the Tribunal a statement and documents in support of her claims, including certificates of completion and academic transcripts for an Advanced Diploma of Community Sector Management, Certificates III and IV in Aged Care, Certificate IV and Diploma of Community Services Work, past Confirmations of Enrolment and a letter regarding the cessation of operations by the Careers Australia Group Limited and its subsidiaries.

10. In her statement, the applicant stated that she was due to complete her Associate Degree of  Business at the Australian School of Management in November 2017. However, the education provider ceased operations in May 2017 due to financial difficulties (a letter from the administrators was attached). As she was two units short of completing her Associate Degree, she was only awarded a Diploma of Business (certificate attached). As other course providers required her to study for more than a year to receive an Associate Degree, the applicant decided that ‘it was better to wait for her appeal to be processed before enrolling with a new course provider’.

11. At hearing, the applicant confirmed that she was not enrolled in, or hold an offer of enrolment in any course of study, as required for the grant of a Student visa. She said she did not wish to spend money on a new Confirmation of Enrolment in case her Student visa was not approved. Since her course ended in May 2017, she had been working in her role as a community worker, a job she had held for 6 years.

12. Therefore, 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.

15. As the first applicant does not meet the primary criteria and the second applicant has applied solely as the spouse of the first applicant, it follows that the second applicant does not meet the secondary criteria.

    DECISION

16. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Mara Moustafine
    Member