lin (Migration)

[2017] AATA 1919

lin (Migration) [2017] AATA 1919 (12 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr xixiang lin

CASE NUMBER:  1704760

DIBP REFERENCE(S):  BCC2016/2194511

MEMBER:Tim Connellan

DATE:12 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 12 October 2017 at 1:49pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) Visa – Subclass 573 (Higher Education Sector) – Failure to supply requested documents – Failure to appear 

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.40A, Schedule 2, cl 570.232, 571.232, 572.231, 573.111, 573.225, 573.231, 574.111, 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 22 February 2017 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 11 February 2013 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.573.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant failed to provide evidence of adequate arrangements in Australia for health insurance during the period of his intended stay in Australia.

4. The applicant appealed that decision to be reviewed by this Tribunal.

5. On 18 May 2017 the Tribunal emailed the applicant and requested he provide the Tribunal with evidence of current enrolment which it stated was required for the grant of a student visa and evidence of health cover. He was asked to provide this evidence by 1 June 2017.

6. He did not respond to this request.

7. On 13 September 2017, the Tribunal wrote to the applicant inviting him to a hearing scheduled for 12 October 2017 at 89.30 am to give evidence and present arguments relating to the issues in his case. The hearing letter again requested him to provide evidence of current enrolment in the form of a Confirmation of Enrolment which it again stated was required for the grant of a student visa and evidence of health insurance which had been the reason for the original refusal.

8. The applicant was requested to provide the requested evidence at least 7 days before the scheduled hearing.

9. The applicant did not respond to the hearing invitation, did not provide the requested evidence and did not attend the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue before the delegate was whether the applicant met the criterion in 573.225. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

12. 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.

13. 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.

14. 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.

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

    DECISION

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

    Tim Connellan
    Member