Okamoto (Migration)

[2017] AATA 2230

Okamoto (Migration) [2017] AATA 2230 (9 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Tomoko Okamoto

CASE NUMBER:  1515743

DIBP REFERENCE(S):  BCC2015/2211123

MEMBER:Gabrielle Cullen

DATE:9 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 09 November 2017 at 3:05pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – Not enrolled in a course of study – No current offer of enrolment

LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, r 1.04A, Schedule 2, cl 570.232, cl 571.232, cl 572.222, cl 572.223, cl 572.231, cl 573.111, cl 573.231, cl 574.111, cl 574.231, cl 575.111, cl 575.231, cl 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 30 October 2015 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 3 August 2015 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 visa applicant (the applicant) did not satisfy the requirements of cl.572.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) on the basis that she is not a genuine applicant for entry and stay as a student.

4. On 16 October 2017 the Tribunal wrote to the applicant and invited her to attend a hearing by telephone on 9 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 she 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. She was also invited to provide a written statement as to whether she is a genuine temporary entrant by referring to Direction 53 which was attached. She provided a statement as to why she had studied the courses she had and why she is a genuine temporary entrant.

5. The applicant appeared before the Tribunal by telephone on 9 November 2017 to give evidence and present arguments.

6. The applicant indicated that her enrolment ceased in September 2017. The Tribunal raised with the applicant via the process outlined in s.359AA that PRISMS records indicate she is not currently enrolled in a course. It also noted that these records indicate she ceased being enrolled in September 2017. It raised with her the relevance of this matter and that it may lead it to find she does not meet the enrolment criteria and that it may lead it to find she is not entitled to the grant of a student visa. She answered orally and referred to her past enrolment and that she had been refused as she was not a genuine temporary entrant. The Tribunal advised that an issue before it is whether she is currently enrolled or has an offer of enrolment. It advised this was a time of decision criteria. She said she needs to be further skilled. She gave evidence as to why she met the genuine temporary entrant criteria referring to her past study and work in the area, and the value of the courses to her future.

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 applicant and the Department’s electronic (PRISMS) records before the Tribunal indicates that the applicant is not currently enrolled in a course of study and she has not provided any evidence that she is subject to a current offer of enrolment. The applicant also confirmed she is not enrolled. The evidence indicates that her enrolment ceased in September 2017. The Tribunal has considered the applicant’s response as to why she is not enrolled but is of the view there is no evidence she is currently enrolled or under an offer of enrolment. 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 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