Saengsuk (Migration)

[2017] AATA 2024

Saengsuk (Migration) [2017] AATA 2024 (16 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Pimjai Saengsuk

CASE NUMBER:  1613897

DIBP REFERENCE(S):  CLF2016/23999

MEMBER:Wendy Banfield

DATE:16 October 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 16 October 2017 at 11:58am

CATCHWORDS

Migration – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – Applicant did not appear – Evidence of course enrolment

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, r 1.40A, Schedule 2, cl 570.232, cl 571.232, 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 11 August 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 15 April 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 had not demonstrated she intends genuinely to stay temporarily in Australia.

4. On 13 September 2017 the applicant was invited to attend a Tribunal hearing on 13 October 2017 in relation to her application for review. The invitation was sent to the applicant’s migration agent by email. The migration agent responded on 21 September 2017 stating the applicant was in the process of engaging another representative. On 4 October 2017 the applicant’s representative wrote to the Tribunal and advised he had been unable to contact the applicant and her education provider has also been unable to contact her, as of March 2017. Her enrolment at the college she had been attending was cancelled as of that date.

5. On 5 October 2017 the Tribunal wrote to the applicant at her email address inviting her to update her contact details and attaching the relevant form. However, the email address was not active and instead the correspondence was sent by mail to the applicant’s last known address. It was also sent to her migration agent as required. The Tribunal attempted to phone the applicant but there was no answer and a voice message was left for her.

6. On 12 October 2017 the applicant’s representative wrote to the Tribunal and declared he had not received any communication from the applicant despite a number of attempts to contact her. SMS hearing reminders were sent to the applicant’s mobile phone by the Tribunal on 6 and 12 October 2017 and a case officer made another attempt to contact her by phone on 13 October 2017 but as there was no answer, a detailed message was left.

7. The applicant did not attend the hearing on the date and time scheduled and as at the date of decision, there has been no contact from her.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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.

11. The applicant arrived in Australia on 11 May 2014 as the holder of a Subclass 573 student visa. Since then she has completed courses in English for Academic Purposes and General English but there is no evidence she is currently studying. 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.

12. 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.

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

    DECISION

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

    Wendy Banfield
    Member