Ngo (Migration)

[2017] AATA 109

Ngo (Migration) [2017] AATA 109 (6 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hong Bao Ngo

CASE NUMBER:  1607820

DIBP REFERENCE(S):  CLF2016/10754

MEMBER:Mara Moustafine

DATE:6 January 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 06 January 2017 at 12:06am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector - No evidence of enrolment – No evidence of current offer of enrolment in any applicable course of study

LEGISLATION

Migration Act 1958, s 65, cl 573.231
Migration Regulations, Schedule 2

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 24 May 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 17 February 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.573.334 PIC4005 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he had not completed a medical examination, as required for the grant of a student visa.

4. The applicant applied to the Tribunal for a review of that decision on 31 May 2016 and provided a copy of the delegate’s decision record.

5. On 1 December 2016, the Tribunal sent the applicant an invitation to attend a hearing on 22 December 2016 to give evidence and present arguments. In the invitation letter, the applicant was requested to provide the following information by 15 December 2016 ahead of his scheduled hearing:

   • a copy of his current Certificate of Enrolment (COE) as required for the grant of a student visa;
   • documents that show he was currently enrolled in a registered course, or had an offer of enrolment in a registered course, as required for the grant of a student visa;
   • documents that showed his past studies in Australia, including copies of all his attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia; and
   • an explanation of any gaps in his enrolments and any documentary evidence relevant to your explanation.

6. The applicant appeared before the Tribunal on 22 December 2016 and provided documents relating to his Higher School Certificate studies at Miller Technology High School, a student card from Western Sydney University (WSU) The College in the name of ‘Bao NGO’ expiring 31 March 2019 and a generic Course Offer Summary from the University of Western Sydney for a Diploma of Business between 29 February 2016 and 30 April 2017. This document did not identify the applicant and was not accompanied by an Offer of Admission letter for the course.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue before the delegate was whether the applicant met the criterion in cl.573.334 PIC4005 of Schedule 2 to the Regulations. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

9. 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.

10. At the beginning of the hearing the Tribunal confirmed that it had sighted evidence that the applicant had now completed his medical examination and indicated that the issue before the Tribunal now was whether the applicant met the enrolment requirements for a student visa. The Tribunal noted that the applicant had not provided the documents requested by the Tribunal in its invitation letter (paragraph 3 above refers) prior to the hearing and that the documents he presented at hearing appeared to relate to his HSC studies and did not include a copy of his current COE or documents that showed he was currently enrolled in a registered course, or had an offer of enrolment in a registered course, as required for the grant of a student visa.

11. The applicant told the Tribunal that he did not have a current COE because he was changing from Business Studies to Media and Communications and that he was not currently enrolled as he had to wait till February 2017 for the new course to start. He claimed he had been enrolled for the past two terms in Business Studies. As evidence of this he showed a student card, a timetable and a receipt on his phone for what he claimed to be a confirmed payment.

12. In a discussion of what courses he had started and completed, the applicant said that, after finishing his HSC on 3 November 2015, he was accepted into WSU The College in February 2016 and that he had completed various units in Business Studies, which he stopped studying on 30 November 2016 and that he had evidence of this.

13. The Tribunal noted that, if this were the case, the applicant would have a COE for this course. However, there was no evidence of such an enrolment on his record in the Provider Registration and International Student Management System (PRISMS). Moreover, there was no evidence in PRISMS that he had ever been enrolled in Business Studies or any other registered course at WSU and that his last registered courses were his high school Year 11 and 12 courses. The Tribunal drew to this to the applicant’s attention in accordance with s.359AA of the Act, noting that it raised doubts as to the truthfulness of his evidence and to his general credibility.      

14. The applicant responded that he had evidence that he had been studying Business Studies at WSU for the past two terms and sought more time to provide such evidence, including a COE and academic transcripts and certificates of completion. The Tribunal agreed to his request that he be given until 23 December 2016 to provide this evidence.

15. However, in an email to the Tribunal on 23 December 2016, the applicant advised that he was unable to provide evidence of his WSU College certificate of enrolment because the Student Central offices closed from Friday 23 December. He attached a document purporting to be a ‘WSU grading notice’ with study results, asking for confirmation as to whether this was ‘sufficient evidence’. The Tribunal responded to the applicant by return email the same afternoon, advising that he had undertaken to provide evidence of his study for the past two semesters in the Business Studies course at WSU The College, including a COE for this course, as well as academic transcripts, attendance certificates and certificates of units completed.

16. No further information was provided by the applicant to the Tribunal until this date.  

17. There is, therefore, 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.

18. 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.

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

    DECISION

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

    Mara Moustafine
    Member