MORANOK (Migration)

[2017] AATA 3147

MORANOK (Migration) [2017] AATA 3147 (26 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss MONTAKRAN MORANOK

CASE NUMBER:  1606308

DIBP REFERENCE(S):  BCC2015/3907372

MEMBER:Penelope Hunter

DATE:26 April 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 26 April 2017 at 9:09am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Whether the applicant is enrolled in, or has a current offer of enrolment in an applicable course of study – Applicant not enrolled or subject of an offer of enrolment applicable course of study – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 1.40A, 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 29 April 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 16 December 2015 to undertake study in Australia. The applicant proposed to undertake study in a Certificate IV in Information Technology with course dates from 4 January 2016 to  30 December 2016 and a Diploma of Information Technology with course dates from 9 January 2017 to 5 January 2018.

3. 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).

4. 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 the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

5. The applicant appeared before the Tribunal on 20 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai 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(1)(a). 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. In his decision, submitted to the Tribunal by the applicant, the delegate noted that the applicant’s enrolment in her Certificate IV in Information Technology and Diploma of Information Technology had been cancelled on 15 January 2016 for non-commencement of studies. In her evidence to the Tribunal the applicant confirmed that Strathfield College had cancelled her enrolment. The applicant however claimed that she had attended. The Tribunal asked the applicant what steps she had undertaken to correct this with the College. The applicant responded that she was not sure as it was in the hands of her agent. She claimed to be assisted by a migration agent in relation to the application for visa and the application for review.

10. The Tribunal asked the applicant whether she was enrolled or subject to an offer of enrolment in a course of study. She advised that she was not. The Tribunal drew to the attention of the applicant that it was a criterion for the grant of a Student visa that she be enrolled or subject to an offer of enrolment in a course of study.

11. The applicant said she had not enrolled in any further courses after her enrolment was cancelled in January 2016. She told the Tribunal that as Strathfield College had cancelled her enrolment she did not think that she could enrol in any further courses. The Tribunal attempted several times to ascertain from the applicant who had told her that. Her responses were evasive and she referred to the letter or email she received from Strathfield College cancelling her enrolment. The applicant told the Tribunal that she thought that once an enrolment was cancelled she could not enrol in any further courses. Pursuant to the provisions of s. 359AA the Tribunal discussed with the applicant her Provider Registration and International Student Management System (PRISM) records, the applicant was also shown a copy at the hearing. The information contained within the records showed that the applicant had previously had enrolments cancelled on 9 occasions and that she had gone on to enrol in further courses, therefore the Tribunal had difficulty accepting her claim that she did not know that she could enrol in new course once her enrolment was cancelled. The applicant chose to respond immediately and provided the unsatisfactory responses that she thought that it might be different this time as her visa was actually refused and that her case was in the hands of her agent.

12. When asked by the Tribunal what advice she obtained from her agent in relation to further study she responded that her agent did not speak Thai so she had difficulty communicating with him. The applicant was also asked what she wanted to study and if she could recall the reasons why she wanted to undertake the course. The applicant was unable to recall that she had enrolled in a package of courses in Information Technology. She spoke about studying Business Management and that she had wanted to gain some experience to start her own business in Thailand.

13. The Tribunal asked the applicant whether she wanted to study and she claimed that she did. The applicant wanted to study in Australia rather than her home country as she claimed that to study in Australia would be better for her English. When asked why she needed English the applicant claimed that it was important and provided not further explanation.  The Tribunal discussed with the applicant her health and she advised that she had not sought any treatment for any medical condition for over a year and she confirmed that there was no medical condition that interfered with her ability to study. The applicant was unable to satisfactorily explain to the Tribunal why she was not studying if it was her genuine intention to do so.

14. 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.

15. 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.

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

    DECISION

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

    Penelope Hunter
    Member