Farisi (Migration)

[2017] AATA 2250

Farisi (Migration) [2017] AATA 2250 (27 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Salman Al Farisi

CASE NUMBER:  1613749

DIBP REFERENCE(S):  BCC2016/2221214

MEMBER:Wendy Banfield

DATE:27 October 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 27 October 2017 at 5:52pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Genuine student – Lack of academic progress – Lack of intention to study

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 572.223

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 23 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 30 June 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. The delegate in this case 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 it was determined the applicant was not a genuine applicant for entry and stay as a student. These findings were based on the applicant’s study history, potential circumstances in Australia, immigration history and lack of academic progress.

   Background

4. The applicant is a citizen of Indonesia and is 28 years old. He came to Australia on 21 November 2009 as the holder of a Subclass 572 Student Visa. From that time the applicant has been enrolled in numerous vocational courses. He completed studies in English, Business, Management and Marketing. At the time of application for a further Student Visa, the applicant had been intending to study an Advanced Diploma of Hospitality Management.

5. The applicant appeared before the Tribunal on 12 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

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. The applicant has completed vocational course including Certificates III and IV and a Diploma in Business, a Diploma of Management, as well as a Certificate IV and Diploma of Marketing. The applicant’s enrolment in an Advanced Diploma of Hospitality has been cancelled. 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.

10. During the Tribunal hearing the applicant said his true intention in Australia had been to work and he did not have a particular objective when he studied in Australia. The applicant also said he had applied to the Tribunal for a review of the decision to refuse his visa in order to “delay the process”. He was offered the opportunity to withdraw his application but chose not to do so.

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.

    Wendy Banfield
    Member