Sheenh (Migration)

[2018] AATA 3393

Sheenh (Migration) [2018] AATA 3393 (16 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amandeep Singh Sheenh

CASE NUMBER:  1617649

DIBP REFERENCE(S):  BCC2015/3546548

MEMBER:Stephen Conwell

DATE AND TIME

OF ORAL DECISION:  5 April 2018 at 11:31 am (VIC time)

DATE OF WRITTEN RECORD:                16 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – genuine temporary entrant – no valid certificate of enrolment or valid letter of enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s
Migration Regulations 1994 (Cth), Schedule 2 cl 572.223

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 October 2016 in respect of the applicant's visa application of 26 November 2015.  You applied for that visa on 26 November 2015 to undertake study in Australia. 

2. At the time visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses.  Generally speaking the sub-class that can be granted to an applicant who applies as a student depends on the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course, or whether the applicant has the support of the relevant minister.

STATEMENT OF DECISION AND REASONS

1. The delegate in your case refused to grant a visa on the basis that you did not satisfy the requirements of clause 572.223(1)(a), which is the genuine temporary entrant criteria, and on the basis that the delegate as not satisfied that you are a genuine student who intends genuinely to stay in Australia temporarily. You appeared before the Tribunal today to give evidence and present arguments. The Hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. While the issue before the delegate was whether you are a genuine temporary entrant, the issue before the Tribunal now is whether, at the time of this decision, you meet the enrolment requirements for a student visa.

2. The Tribunal has taken some time to explain to the applicant that the issues before the Tribunal are different to the GTE criteria on which the visa was originally refused.  The applicant has confirmed that he understands that and has also gone to some lengths to explain that he has made a concerted effort to obtain a valid CoE and has spoken to several migration agents and sought advice, as well as made several attempts to obtain a valid CoE from his college. 

3. With limited exceptions, none of which are relevant in the present case, the regulations require, for all subclasses of the student visa, 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 or is of a type specified for the sub-class at the time of application.

4. The applicant was invited to attend the Tribunal Hearing by letter of 31 January 2018, which was sent to his migration agent, and that was for a Hearing on 26 February 2018.  The applicant sought a postponement of that Hearing and by letter of 19 February 2018 the Tribunal agreed to that postponement and the matter was set for Hearing today.  In those invitations to the applicant to attend the Hearing the applicant was requested to provide several documents, at least 7 days before the Hearing date, including a copy of the applicant's current Certificate of Enrolment, or documents that he was currently enrolled in a course or had an offer of enrolment in registered course as required for the grant of a visa.

5. A copy of the Certificate of Enrolment was not provided.  At the Hearing today the applicant was again requested to provide to the Tribunal a copy of his current CoE.  He has not been able to do so, and has confirmed both orally and in completing the GTE questionnaire that he does not have a current CoE or a valid letter of enrolment, and has explained that despite his efforts he has not been able to obtain either of those mandatory documents.  Accordingly there is no evidence before me that you are now enrolled in, or have a current letter of enrolment, in any applicable course of study.  Therefore the mandatory current enrolment prerequisite for all student visa subclasses is not met. 

6. Furthermore, there is no evidence that you meet the criteria for either of the remaining subclasses of Class TU.  You are neither supported by the relevant minister as required by clause 576.229, nor have you made the visa application on the basis of a student guardian, which is sub-class 580, and you have confirmed that that is the case.  For these reasons I have concluded that the decision under review should be affirmed. 

   DECISION

7. The Tribunal affirms the decision under review.

   Stephen Conwell
   Member