Dromart (Migration)

[2017] AATA 2632

Dromart (Migration) [2017] AATA 2632 (7 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Clement Andre Dromart

CASE NUMBER:  1613615

DIBP REFERENCE(S):  BCC2016/1337916

MEMBER:Gabrielle Cullen

DATE:7 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 07 December 2017 at 3:25pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Enrolment criteria  – Not currently enrolled in a course of study  – Financial documents provided to the Tribunal –  Not a genuine temporary entrant

LEGISLATION
Migration Act 1958 ss 65, 359AA
Migration Regulations 1994 Schedule 2 cls 570.232, 572.222, 571.232, 572.223, 572.231, 573.111, 574.111, 573.231, 574.231, 575.111, 575.231, 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 6 August 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 1 April 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 7 November 2017 the Tribunal wrote to the applicant via his representative and invited him to attend a hearing on 7 December 2017 by telephone. 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. He was requested that a written statement and other evidence be provide to the Tribunal at least 7 days before the hearing date. A response to hearing invitation was attached to the letter and the applicant was invited to compete and return it. No response was received from the applicant or his representative.

4. The applicant appeared before the Tribunal by phone on 7 December 2017 to give evidence and present arguments. The representative did not attend the hearing.

5. The Tribunal asked the applicant whether he was currently enrolled or under an offer of enrolment; he responded he was not. The Tribunal raised with the applicant via the process outlined in s.359AA that PRISMS records indicate he is not currently enrolled in a course. 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 that it may lead it to find he is not entitled to the grant of a student visa. He responded orally after the required options to comment or respond were raised with him. He said the agent had advised that the Tribunal response would take six months to a year and he wanted to wait to apply for an Advanced Diploma. The Tribunal also raised with him that it had requested in the hearing letter he provide evidence of a current enrolment or an offer of enrolment and a statement addressing the genuine temporary entrant criteria but nothing had been received. It raised with him concerns as raised by the Department as to whether he is a genuine temporary entrant. When asked if he had anything to add he said no.

6. After the hearing on 7 December 2017 the applicant’s agent sent the following email.

   My client has provided documents to us on Monday and the financial documents require translation and may I kindly request the further documents to be provided before 18 December 2017.

7. The Tribunal has considered the request but is of the view the applicant has been provided with ample time to provide evidence of his enrolment or an offer of enrolment. He was provided with the opportunity under s.359AA to seek to respond in writing but did not. The request by the representative to translate financial documents received on the Monday prior to the hearing held on Thursday does not address the issue of enrolment or an offer of enrolment. The documents provided by the applicant to his representative on Monday cannot address the issue of enrolment as the applicant said at hearing he was not enrolled, did not have a current Certificate of Enrolment or an offer of enrolment.

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. This was raised with the applicant at hearing.

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. 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 has an offer of enrolment. 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. It requested in its hearing letter that he provide evidence of his enrolment but none has been received at the time of this decision. 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.

12. 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.

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

    DECISION

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

    Gabrielle Cullen
    Member