Ogkanesian (Migration)

[2024] AATA 721

Ogkanesian (Migration) [2024] AATA 721 (2 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr David Ogkanesian

REPRESENTATIVE:  Ms Rayan Hazim

CASE NUMBER:  2315233

HOME AFFAIRS REFERENCE(S):          BCC2014/1535425

MEMBER:Gabrielle Cullen

DATE:2 February 2024

PLACE OF DECISION:  Sydney

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

Statement made on 02 February 2024 at 3:54pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 570 Independent ELICOS Sector visa – genuine temporary entrant criterion met – no evidence that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 1.40, Schedule 2, cl 570.223

CASES
Hasran v MIAC [2010] FCAFC 40

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 Home Affairs on 5 September 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 23 June 2014 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 on 20 October 2014 refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 570.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied he was a genuine applicant for entry and stay and student. The applicant was incorrectly notified of this decision in 2014 and was correctly notified of the decision on 5 September 2023.

4. On 25 September 2023 the applicant applied for review and attached the decision of the Department

5. On 8 January 2024 the Tribunal accessed the review applicant’s record on the Provider Registration and International Student Management System register (PRISMS). The purpose of this search was to ascertain whether the review applicant was enrolled in a registered course of study, as required by cl 500.211(a), because there was insufficient evidence currently before the Tribunal about this. The PRISMS search showed that the review applicant did not hold a current Confirmation of Enrolment (CoE) in a registered course of study and was not enrolled

6. On 18 January 2024 the Tribunal wrote to the review applicant pursuant to s 359A of the Act, inviting the review applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The particulars of the information were that the review applicant’s PRISMS record showed that the applicant was not enrolled in a  course and on the basis of the evidence before it, the Tribunal may find he does not meet cl.570.232 and/or cl.572.222 as he is not enrolled in or the subject of an offer of enrolment in a course of study. The applicant was given until 1 February 2024 to respond.

7. As at the time of this decision no further evidence has been provided.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The review applicant did not provide the information requested within the period allowed including within the extension of time granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

10. The issue before the delegate was whether the applicant met the criterion in  570.223. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

11. 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 reg 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.

12. 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.

13. 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.

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

    DECISION

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

    Gabrielle Cullen
    Member