PATEL (Migration)

[2017] AATA 2432

PATEL (Migration) [2017] AATA 2432 (2 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ankitkumar Govindbhai PATEL

CASE NUMBER:  1616843

DIBP REFERENCE(S):  BCC2016/863421

MEMBER:Penelope Hunter

DATE:2 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 02 November 2017 at 3:18pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Not currently enrolled – No offer of enrolment

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 572.223, cl 573.231, r 1.40A

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 22 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 2 March 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.572.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not give evidence satisfy the requirements of Schedule 5A to the Regulations. Specifically, the applicant did not provide evidence that he met the English language requirements of Schedule 5A.

4. The applicant appeared before the Tribunal on 13 October 2017 to give evidence and present arguments.

5. Following the hearing the Tribunal deferred consideration of the matter and directed that the applicant file with the Tribunal further evidence in support of his claim on or before 20 October 2017 including;

   i.A Confirmation of Enrolment in a course of study or a letter of offer of enrolment in a course of study.

   ii.Evidence of course fees.

   iii.Evidence to demonstrate that the loan issued by the Allahabad Bank on 8 April 2016 is still current or that the applicant has funds from an acceptable source that were sufficient to meet his expenses for the first 12 months.  

   iv.Evidence that the applicant has access to the funds available for his support.

6. On 23 October 2017 the applicant submitted to the Tribunal the following document;

   i.Statutory declaration of Sarikaben Jayeshkumar Patel dated 23 October 2017

   ii.Copy of passport of Sarikaben Jayeshkumar Patel issued 11 July 2017.

   iii.ANZ Progress Saver Account details for Sarikaben Jayeshkumar Patel dated 20 October 2017.

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. 573.223. 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. The Tribunal raised with the applicant at the hearing that it was not satisfied that the applicant was enrolled or subject to an offer of enrolment in a course of study. The letter in respect of enrolment submitted by the applicant from the student service officer of Acknowledge Education, dated 11 October 2017, provides the following information;

    To whom it may concern,

    We are pleased to confirm that Ankit Kumar Patel was enrolled in a Bachelor of Business from 27/07/15 to 24/05/2017 at Stotts College. We have received the application that the above student is willing to continue his studies from 20/11/2017.

11. When asked by the Tribunal to confirm whether he was enrolled, the applicant provided evidence that he was not currently enrolled as the course did not start until 20 November 2017 and he was awaiting the outcome of the Tribunal hearing.

12. The Tribunal was not satisfied that the letter submitted by the applicant was an offer of enrolment. It merely stated that the applicant was willing to continue his studies.

13. Furthermore the Tribunal attempted to contact the student services officer, on 13 October 2017, prior to the hearing to clarify the applicant’s enrolment and received a recorded message that the number was not connected. The Tribunal informed the applicant at the hearing that it had been unable to verify that he had a current offer of enrolment. The applicant was invited to present evidence to the Tribunal including a current Confirmation of Enrolment or offer of enrolment. The applicant was also informed that without the information it requested the Tribunal was unable to make a decision in the applicant’s favour.

14. The Tribunal has considered the information submitted by the applicant on 23 October 2017. This relates to funds that the applicant claims are available for his support from a family friend. It does not address the issue of enrolment. Considerable time has passed, the applicant has not presented any further evidence to the Tribunal at the time of decision, or made any request for an extension to provide evidence.

15. The Tribunal is not satisfied that the letter of 11 October 2017 from Acknowledge Education is an offer of enrolment. 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.

16. 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.

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

    DECISION

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

    Penelope Hunter
    Member