NYAMBE (Migration)

[2017] AATA 3165

NYAMBE (Migration) [2017] AATA 3165 (27 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SULUMESI NYAMBE

CASE NUMBER:  1616635

DIBP REFERENCE(S):  BCC2016/1603461

MEMBER:Gabrielle Cullen

DATE:27 November 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 November 2017 at 9:15am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training sector) – No course enrolment – Awaiting IELTS results

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth),r 1.40A Schedule 2 cl 572.222

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 19 September 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 1 May 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.    On 25 October 2017 the Tribunal wrote to the applicant and invited him to attend a hearing on 16 November 2017 in Perth. The applicant was invited to provide evidence, such as a copy of a current certificate of enrolment as required for the grant of a student visa and/or documents to demonstrate he was currently enrolled in a course or had an offer of enrolment in a registered course, as required for the grant of the student visa. He was also invited to provide a written statement as to whether he is a genuine temporary entrant by referring to Direction 53 which was attached.

4.    The applicant appeared before the Tribunal by phone on 16 November 2017 to give evidence and present arguments.

5. The Tribunal raised with the applicant via the process outlined in s.359AA that PRISMS records indicate he is not currently enrolled in a course. It raised with him the relevance of this matter and that it may lead it to find he does not meet the enrolment criteria and that it may lead it to find he is not entitled to the grant of a student visa. The applicant confirmed he was not enrolled or under a current offer of enrolment. He said he cannot enrol currently as he is awaiting the results of his IELTS test taken on 10 November 2017. It asked him questions as to why he had not been enrolled in a course since February 2017 and raised with him under s.359AA that the information from PRISMS indicates his enrolment was cancelled for unsatisfactory course progress. The Tribunal also raised with him the Schedule 5A requirements which he is required to meet and asked him questions as to the genuine temporary entrant requirement. It outlined the information required and he was given until close of business on 23 November 2017 to provide further documentation.

6.    At the time of this decision no further documentation has been received.

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.572.223. 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. Information from the Department’s electronic (PRISMS) records before the Tribunal indicates that the applicant is not currently enrolled in a course of study and he has not provided any evidence that he is subject to a current offer of enrolment. The applicant also confirmed he is not enrolled. The evidence indicates that his enrolment ceased in February 2017. The Tribunal has considered the applicant’s response as to why he is not enrolled but is of the view there is no evidence he is currently enrolled or under an offer of enrolment. It gave him time following the hearing to provide evidence of enrolment but at the time of this decision no such evidence has been provided. On that basis, the Tribunal finds that the applicant does not satisfy cl.572.222 of Schedule 2 to the Regulations. Additionally, there is no evidence before the Tribunal that the first named 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.

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.

Gabrielle Cullen
Member