Singh (Migration)

[2018] AATA 3118

Singh (Migration) [2018] AATA 3118 (23 February 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manpreet Singh

CASE NUMBER:  1715403

DIBP REFERENCE(S):  BCC2016/580690

MEMBER:Penelope Hunter

DATE:23 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 23 February 2018 at 4:30pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Federal Court remittal – Course enrolment cancelled – Unsatisfactory course progress – Credibility issues – Unable to identify course title – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.40A Schedule 2 cls 570.232, 571.232, 572.231, 573.111, 573.231, 574.111, 574.231, 575.231

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 27 April 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 9 February 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 refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was a genuine applicant for temporary entry and stay in Australia as a student.

4. The applicant sought a review of the delegate’s decision by this Tribunal. On 13 April 2017, the Tribunal (differently constituted) affirmed the delegate’s decision.

5. The applicant appealed this decision to the Federal Court. On orders were made remitting the matter back to the Tribunal for reconsideration.

6. The applicant appeared before the Tribunal via telephone on 21 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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. 572.223. 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. At the commencement of the hearing the applicant claimed that he was studying and progressing through his course. He identified the course as a Diploma of Human Resources Management on the Gold Coast, Queensland. He claimed that he would complete the course in 4 or 5 months. The Tribunal then questioned the applicant why he had not submitted evidence of his enrolment to the Tribunal. The applicant claimed that he had done so.  On the day of the Tribunal hearing the applicant submitted the following additional documents;

    i.Certificate of Completion of a Diploma of Leadership and Management issued 10 November 2016, schedule of attendance and Confirmation of Enrolment,

    ii.PTE Academic Test Taker Score Report issued 16 December 2016.

    iii.Certificate of Completion of an Advanced Diploma of Business issued 24 May 2017, schedule of attendance and record of results.

    iv.Board of Higher School Education Intermediate Exam results.

    v.Migration Certificate.

11. The Tribunal told the applicant that it had not received any confirmation of his current enrolment in the documents he had submitted. The applicant was certain he had this evidence and claimed that he had an email and he could resend it to the Tribunal. He claimed that it could be sent by 5 pm on 22 February 2018.

12. The Tribunal then put to the applicant for comment information contained in his Provider Registration and International Student Management System (PRISMS) records that his enrolment in an Advanced Diploma of Management (Human Resources) has been cancelled on 22 January 2018 due to unsatisfactory course progress. Further that this was the third time that his enrolment in this course had been cancelled. The first occasion on 12 September 2017, due to non-payment of fees and secondly on 20 October 2017 due to unsatisfactory course progress.

13. The applicant chose to respond immediately and claimed that he was aware that his enrolment had been cancelled two times in the past but was not aware of the most recent cancellation. The Tribunal asked the applicant when he last attended his course and he claimed that it was in December 2017, prior to the Christmas break. He was supposed to attend classes twice a week. The applicant acknowledged that he was to have returned to study in mid January 2018. The Tribunal then questioned the applicant as to how he could reasonably expect to continue to be enrolled in his course when he had not attended since the previous year. The applicant claimed that he was submitting assignments online. The Tribunal discussed the previous course cancellation for unsatisfactory course progress with the applicant, he told the Tribunal that he was accused of copying one of his assignments from the internet.

14. The Tribunal questioned the reliability of the evidence of the applicant given that he had not been able to correctly identify whether he was studying a Diploma or Advanced Diploma. Additionally, he had claimed that he was progressing in his course, and had evidence of enrolment, and yet this was directly contradicted by his PRISMS records and he was not attending. 

15. It is noted that the applicant was first invited to attend a hearing by the Tribunal on 22 December 2017. This hearing was rescheduled to allow the applicant to attend at a later date by phone. The applicant has been on notice that the Tribunal would require evidence of his current enrolment since that time.

16. At the conclusion of the hearing the Tribunal again invited the applicant to submit the evidence he claimed to have regarding his enrolment by 5 PM on 21 February 2018 or any material to dispute the information in his PRISMS records.

17. After the Tribunal hearing the applicant submitted screenshots for the payment of course fees to Academic Pty Ltd on 23 December 2017 and 21 January 2018 and he claimed he was request evidence of other payments. The applicant has provided no further evidence regarding current enrolment, despite stating at the hearing this evidence was readily available for submission. Considering the concession by the applicant that he had not attended his course since December 2017 the Tribunal is not satisfied that he had evidence of current enrolment to produce. There is no reliable evidence to dispute the information contained in his PRISMS records.

18. There is no satisfactory evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. The Tribunal therefore finds that cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.

19. 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.

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

    DECISION

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

    Penelope Hunter
    Member