Gunness (Migration)

[2018] AATA 2009

Gunness (Migration) [2018] AATA 2009 (29 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rishna Gunness

CASE NUMBER:  1614697

DIBP REFERENCE(S):  BCC2016/1418611

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          29 March 2018 at 11:15 am (VIC time)

DATE OF WRITTEN RECORD:                16 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572(Student) visa – Genuine Temporary Entrant criteria not met – No offer of enrolment – Decision under review affirmed

LEGISLATION
Migration Act 1958
Migration Regulations 1994, Schedule 2, cls 572.222, 572.223

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 September 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under the Migration Act 1958 (the Act).

2. At the hearing on29 March 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. To be eligible for the grant of a student visa, applicants must satisfy a range of criteria set out in the regulations.

4. You applied for a student visa on 8 April 2016 and your application was refused on 2 September 2016 because having considered your circumstances, the delegate was not satisfied you met the Genuine Temporary Entrant criteria and therefore did not satisfy clause 572.223.

5. You appealed the decision to be reviewed by this tribunal and with your application you included a copy of the primary decision.

6. To satisfy 572.223 an applicant must be both a genuine student and a genuine temporary entrant.

7. To be a genuine student you must be engaged and applying yourself to a meaningful programme of study, progressing academically down an identifiable path.

8. To be a genuine temporary entrant your circumstances must indicate a genuine intention to remain in Australia temporarily

9. As was explained in the primary decision, when considering if an applicant is a genuine temporary entrant, it is necessary to have regard to what is known as Ministerial Direction No. 53 and the issues in that direction. They were detailed in the primary decision and they include:

   ·     Your circumstances

   ·     The value of your course/s to your future

   ·     Your immigration history

   ·     Your incentive to stay in Australia or return home

   ·     If you are using the student visa programme to maintain ongoing residence in Australia

   ·     Any other relevant matters

10. This is not meant as a checklist but as a guide for decision-makers to weigh up an applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criteria.

11. The role of the tribunal is to take a fresh look at your application, consider your circumstances and the issues in Direction No.53 and be satisfied you are a genuine student who intends to stay in Australia temporarily.

12. You told the tribunal you had read and understood the primary decision and we read from it and discussed it today in some detail.

13. With the hearing invitation we asked you to provide a range of evidence including a statement addressing the issues in Direction No. 53 indicating that you are a genuine temporary entrant, given it was the reason your application was refused.

14. You did not respond to the hearing invitation and did not provide the requested evidence.

15. We also asked you to provide evidence that you are currently enrolled and you have today told the Tribunal you are not currently enrolled.

16. You told the Tribunal you came here initially in June 2009 because you wanted to study to be a cook. To study the complete package of courses being Certificate III, Certificate IV and Diploma of Hospitality to qualify to be a cook takes maybe three years certainly no longer than four. You have been here for almost 9 years and say now you wish to stay longer which casts significant doubt on whether you are a genuine temporary entrant.

17. However, while your visa was refused because the delegate found you did not meet the Genuine Temporary Entrant criteria, you have today told the Tribunal you are not currently enrolled and do not hold a current offer of enrolment.

18. As was explained in the letter sent with the hearing invitation, current enrolment or the offer of enrolment is a pre-requisite for the grant of a visa. It is only when someone is enrolled in a course is it possible to work out other evidence required like the financial evidence which includes  course fees and overseas health cover which is required for the duration of the intended course.

19. As you are not currently enrolled or do not hold a current offer of enrolment, you do not satisfy clause 572.222 which is a pre-requisite for the grant of a student visa.

20. As you do not meet cl.572.222 and are therefore not eligible for the grant of a student visa, the Tribunal does not intend to consider whether you meet the Genuine Temporary Criteria.

21. As you do not meet 572.222 it is the decision of this Tribunal to affirm the decision under review.

    DECISION

22. The Tribunal affirms the decision under review.

    Tim Connellan
    Member