Singh (Migration)

[2018] AATA 2019

Singh (Migration) [2018] AATA 2019 (29 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lovedeep Singh

CASE NUMBER:  1618423

DIBP REFERENCE(S):  BCC2016/2902782

MEMBER:Justin Meyer

DATE AND TIME OF

ORAL DECISION AND REASONS:          29 March 2018 at 1:44 pm (VIC time)

DATE OF WRITTEN RECORD:                19 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 19 April 2018 at 9:41am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine applicant for entry and stay as a student – No current certificate of enrolment – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.408

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 October 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 29 March 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision of the matter of file reference 1618423. This is an application for a review of a decision made by the delegate for Immigration to refuse to grant the applicant a Student (Temporary)(Class TU) under section 65 of the Migration Act. And this is a Subclass 500 visa.

4. The applicant has applicant has applied to the Department of Immigration and made that application on 1 September 2016.  And the applicant has appeared before the tribunal to give evidence and to present argument and has been represented by his migration representative.  And for the following reasons the tribunal has concluded that the decision under review should be affirmed.

5. The consideration of claim and the claims of evidence:  The issue before the delegate was whether the applicant met the genuine temporary entry criteria.  However, the issue is now whether at the time of this decision the applicant meets the enrolment requirements for a student visa, so a subclass 500 visa

6. In regards to a subclass 580 visa there is no student guardian issue before the tribunal.  So separate enrolment criteria were discussed at the hearing and that is with certain limited exceptions of the regulations the regulations require that at the time of decision the applicant must be enrolled in or be the subject of a current offer enrolment in a course of study that is the principal course of a type specified under rule 1.408 for the subclass at the time of application.  This requirement does not apply to certain eligible higher degree students or eligible university exchange students or eligible non-award students.

7. There is no evidence that the applicant is under those categories.  Being without a current certificate of enrolment, which was not expired or cancelled, the applicant cannot be an eligible student as defined under any subclass.

8. At the hearing the applicant was informed that the tribunal had requested the applicant provide a copy of the current certificate of enrolment, which was required for the grant of a student visa.  And the applicant was informed that in the circumstances of the case it was mandatory criterion for all subclasses of the class TU visa that the applicant accepts for the subclass 580 that the applicant gives to the Minister and now to the tribunal a certificate of enrolment, which relates to the undertaking of a course of study with certain exceptions to do with electronic transmission failure, which are not applicable in this case.

9. The applicant was informed that these mandatory criteria are contained in the relevant subclass.  The applicant was informed the invitation to the hearing contained a request from the tribunal: that the applicant provide a copy of one or more certificates of enrolment seven days prior to the hearing and was informed that to meet the mandatory criterion, any current and the cancelled certificate of enrolment was insufficient.

10. The applicant has given evidence that he has completed a questionnaire given to him for the tribunal, which has a question at the top of it saying:

    Do you have a current certificate of enrolment?

    to which he has replied ‘no’.  The most recently completed course of his time in Australia is listed as a Masters of Accounting and Business from Holmes Institute; this was completed in November 2017.  And documentation from Holmes Institute confirming this was provided to the tribunal, which the tribunal accepts the applicant has a previous qualification from India from GNDU in a Bachelor of Commerce degree, which he completed in 2012.

11. He proposes that the four courses proposed in his first student visa application was a Master of Business Administration.  And at the time the full name of the courses he actually started was a Master of Business Administration.

12. He then listed in the hearing that he submitted an enrolment request to two universities, Swinburne University and Victoria University, both for Master of Finance qualifications.

13. The tribunal has been informed by the applicant that no certificate of enrolment has been provided by either of those institutions.  The reason proffered by Victoria University to the applicant in the applicant's evidence was that one of the subjects that he completed in his previous masters degree was obtained by a supplementary pass and that although it was possible to enrol with a supplementary pass in a previous degree another procedure has to be followed and has yet not been completed.

14. The Swinburne University Master of Finance response according to the applicant's evidence was that the matter would be dealt with at a time when it was closer to the commencement of the course or for other administrative reasons.

15. Now the applicant has submitted that the reason for him wanting to remain in Australia is so that he can get professional experience in a one year unpaid professional experience period and an Australian employer.  The applicant has made progress in arranging for that to occur.

16. The applicant has also made progress for receiving a job application acceptance from Joshe Anshula Associates, which is a firm in India, which accepts his job application as an accountant.  It states that the goals outlined for the position are well-matched for the job but in order to move on he is required to complete a mandatory course with his qualification, which is his professional year.  And the organisation wants the applicant to complete this course in Australia and relevant work experience will be of advantage to the firm offering the position.  That is an undated letter.

17. The tribunal has heard evidence from the applicant that if he is not able to complete that professional year, which is an unpaid year in Australia, it will render his chances of obtaining an appropriate position in India to be unviable and that it is a requirement.  And he has also stated that he is in a difficult situation in that his position was that he needed to have an enrolment in order to qualify under the appropriate provisions of the Act and the regulations, and that his attempts to get an enrolment have not been successful to date but are not specifically to obtain further education, which the tribunal notes, and that he does not need and the applicant accepts that he does not need but instead to maintain the requirement of having a certificate of enrolment, which is required.

18. So the tribunal has given consideration to this matter and can see the invidious position that the applicant is in.  Nonetheless the tribunal notes the frankness of the applicant; however the tribunal notes that a fundamental requirement of having a certificate of enrolment is not present.  The tribunal has ventilated at length the need for this and has also indicated, and the applicant has understood, that the issue before the tribunal is not genuine temporary entrant issue that was before the delegate but is, in fact, now a certificate of enrolment issue.

19. The tribunal has come to the conclusion that the approaches that the applicant made to the two universities, Swinburne University and Victoria University, were done orally and in person by the applicant by visiting those universities.  The tribunal has questioned the applicant as to whether he has formally made an application and the tribunal has concluded that he has not formally made such an application to be enrolled.  He has not received receipt from either university that he can supply the tribunal.  He has not received paperwork back from either university that confirms this information and therefore the tribunal has concluded that these were more informal approaches to these universities which were more on an ‘information’ basis than anything else and the tribunal does not accept that an application of any real kind has been made to those universities for a certificate of enrolment.

20. So even before going through that issue of whether there is a certificate of enrolment, and the tribunal has concluded that there is not, the tribunal has looked at this discretion and has concluded that the attempts to obtain a certificate of enrolment were not done in a wholehearted fashion, which therefore leaves some considerable doubt in the mind of the tribunal as to whether the need for the year's employment professional placement without pay within the accounting context in Australia is indeed necessary for the applicant.

21. The applicant has also been put on notice before the hearing that a certificate of enrolment or alternative arrangement, as described earlier, is required.  And the tribunal's invitation clearly requests this and the tribunal has given notice.  The tribunal also notes that it is not necessarily a difficult thing to obtain a certificate of enrolment of some kind or another in the myriad of courses that are available to students, overseas students in Australia and yet over a period of time from his graduation in November 2017 until the present date of 28 March 2018, this is a reasonable time to have obtained a certificate of enrolment and yet it has not been obtained and its equivalents have not been obtained.

22. Therefore the tribunal has not received a meaningful response as to the question of why he was unable to comply with the request, the written request.  Therefore the tribunal is not satisfied the applicant has an offer of enrolment, actual confirmed enrolment, or that he has given a Confirmation of Enrolment for a relevant course of study, which is not cancelled or has expired.  Therefore, as confirmed by the applicant, he has made the visa application in Australia and not outside Australia and also there are no exceptions in this particular case in that regard.  He does not meet the other equivalent subclasses.

23. The applicant was advised that there are mandatory criteria for a student visa, which are quite separate from the genuine temporary entrant criteria and the tribunal affirmed the decision not to grant the visa on these alternative bases.  Therefore there is no evidence to suggest the applicant meets criteria for either a subclass 576 or subclass 580 visa, therefore for these reasons the decision under review must be affirmed.  The tribunal has dealt with the request for more time but as earlier mentioned after the clear request the tribunal has given enough time for a certificate of enrolment to be provided and for that reason is not pursuing the request from the applicant to do that.

24. The applicant has also put forward a decision of the Administrative Appeals Tribunal made on 7 March 2018 in another matter case number 1618586, which does not explicitly say but by inference states that additional time should be given to the applicant who was not a holder of a certificate of enrolment at that time in order to allow the applicant to continue in Australia to attend his own graduation or his own graduation ceremony.  This is whilst evidence of a discretion that the tribunal may so operate in some other circumstances, the tribunal is not bound by similar decisions within this jurisdiction, and the tribunal also distinguishes between particular fact situations.  And the tribunal finds in this particular case this is a different situation to being required to graduate and this is a much longer period that is in question.  So therefore the tribunal does not provide additional time and distinguishes between the case that is cited.

25. The tribunal makes the following decision.  The tribunal affirms the decision not to grant the applicant a student temporary class TU visa.  That is the end of the tribunal's decision.

    DECISION

26. The Tribunal affirms the decision under review.

    Justin Meyer
    Member