Singh (Migration)

[2019] AATA 3735

Singh (Migration) [2019] AATA 3735 (5 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Barinder Pal Singh

CASE NUMBER:  1616306

DIBP REFERENCE(S):  CLF2014/74577

MEMBER:Mark O'Loughlin

DATE AND TIME OF

ORAL DECISION:  5 June 2019 at 11:13 am (SA time)

DATE OF WRITTEN STATEMENT:         7 June 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 07 June 2019 at 10:52am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – Federal Circuit Court Remittal – genuine temporary stay – deferral of studies – COE not provided – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 157A, 157E, 359A
Migration Regulations 1994 (Cth), Schedule 2 cls 572.222, 572.223(1)(a), 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 and Border Protection 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 18 June 2014. The delegate decided to refuse to grant the visa on 18 June 2014. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted 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); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 (1)(a) of Schedule 2 to the Regulations because she was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. The applicant sought review of that decision by the then Migration Review Tribunal which, on 19 June 2015, affirmed the delegate’s decision.

5. The applicant applied to the Federal Circuit Court for judicial review of the Migration Review Tribunal’s decision and on 21 September 2016 Judge Heffernan made an order quashing the Migration Review Tribunal’s decision and ordering the Administrative Appeals Tribunal to review the delegate’s decision of 18 June 2014.

6. The applicant appeared before the Tribunal on 5 June 2019 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent who did not, however, attend the hearing.

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(1)(a). However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

10. The applicant gave evidence that he came to Australia in 2009 to pursue studies to enable him to run a mechanical workshop.  To do that he started a Certificate 3 in Automotive at Pacific International College.

11. He also wanted to do other study including a Diploma of Business to help him with the managerial side of the work.

12. He said, and the Tribunal accepts, that his father was running an automotive business in Dubai and his intention was that once he had finished studying he would go and work with his father.

13. The applicant gave evidence that after he had done the Diploma of Business he applied for a work visa to get some experience and that he worked as a mechanic.

14. He gave further evidence, which the Tribunal accepts, that his father fell victim to an unscrupulous cousin and lost control of his business, meaning that there was no longer an opportunity for the applicant to work with him.

15. He said that that happened towards the end of 2013 and in early 2014 and that he decided to change his plans.

16. He said that the delegate of the Minster had made a mistake in her decision when she found that he had 18 months experience of work.  He said that he only had 3 months of experience of work.  Ultimately this is not an important issue for the purposes of this review.

17. The applicant said that he applied for the subject visa in May 2014 and agreed when asked whether 21 May 2014, the date on the application, sounded correct.  That was an application for a Student visa subclass 572 so that he could study management and marketing and be able to run a business.

18. He said that he was surprised when his application was refused within 28 days and that he had been expecting a request for further documentation.  He also said that he was concerned about some of the delegate’s findings and that he appealed to the Migration Review Tribunal.

19. He said that while he waited for his matter to go before the Migration Review Tribunal he decided not to study although he was free to do so under the terms of his bridging visa.

20. He did continue to do the security work that he had been doing at the time he applied for the Student visa.

21. He said that he decided to defer study until he had the decision from the Migration Review Tribunal.

22. He further said that when the Migration Review Tribunal hearing approached, it was explained to him that he needed to be studying in order to qualify for the Student visa.

23. He said that he started a Diploma in Marketing but that because of the problem with his visa he was unable to enrol at one of the larger Universities which would have been his preference.

24. He further said, and the Tribunal accepts, that he finished the Diploma of Marketing a few years ago and agreed with the Provider Registration and International Student Management System (PRISMS) printout which showed that he finished the Diploma of Marketing on 10 January 2016 and an Advanced Diploma of Marketing on 19 March 2017. That information had previously been put to the applicant under s359A.

25. When asked if he had enrolled in anything since 19 March 2017 he said that he had enrolled in an Advanced Diploma of Leadership and Management but that he had not pursued the course beyond about 6 weeks because he didn’t want to keep on with it and did not think it had anything to offer his future.  He thought it was a waste of money.           

26. When the Tribunal asked if he is currently enrolled in anything he said that he had enrolled as he had been asked to by the registrar of the Tribunal.

27. The Tribunal notes that the applicant’s representative had been sent a letter dated 14 March 2019 advising that the PRISMS record showed that the applicant was not enrolled in a full time registered course of study and that this led to the possibility of a finding that the applicant did not satisfy cl.572.222 of the Schedule 2 requirements and that this may be a dispositive issue.

28. The applicant said that in response to the registrar’s enquiry he had enrolled in a course at Salford College. 

29. The Tribunal confirmed that he was referring to a Diploma of Leadership and Management commencing on 17 June 2019 and in relation to which he had provided a letter of offer dated 21/03/2019.

30. The Tribunal asked the applicant whether he had taken the offer up and he replied that he had not.  He said that he decided to come to the Tribunal and see what the outcome of the hearing was before enrolling. 

31. He said that he can easily do the course but that he would prefer to just fulfil the requirement for the visa and once he had that he could go to TAFE and get a better regarded qualification.

32. The Tribunal asked whether there would be anything to confirm that the applicant is currently enrolled in any courses and he said that there would not.

33. He said that he did not distinguish between having a letter of enrolment and actually being enrolled.

34. The Tribunal took him to the various fees referred to in the letter of offer noting that there were about $2,175.00 worth of fees that would now be overdue.  The applicant said that he had not paid them.

35. The applicant confirmed that he does not have a certificate of enrolment.

36. The provisions of cl. 572.222 were put to him and it was explained that if he is not enrolled in any course his application must fail.

37. He said that the reason for his original refusal was the Genuine Student requirement and that he had come to discuss that today. It had been clearly put to the applicant, both in the letter from the Tribunal of 14 march 2019 and at the hearing that the lack of enrolment would be a dispositive issue.   He said that he could not say much about the lack of enrolment.  He made no further comment.

38. Save for exceptions in limited circumstances, cl.572.222 requires that the applicant gives to the Minister a certificate of enrolment relating to the applicant undertaking an acceptable course (as defined).The first exception relates to applications made on form 157E and does not relate to this application which was made on form 157A.

39. The second exception relates to matters that attract cl.572.222(2) because a failure of electronic transmission has prevented an education provider from sending a certificate of enrolment.  The Tribunal is satisfied that this exception does not apply because the applicant, by his own admission, is not enrolled in any course and cannot therefore qualify for a certificate of enrolment.

40. There are no other exceptions.

41. There is no evidence before the Tribunal that the applicant is now enrolled in any applicable course of study. Therefore cl. 572.222 , is not met.

42. 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.

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

    DECISION

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

    Mark O'Loughlin
    Member