SINGH (Migration)

[2017] AATA 2044

SINGH (Migration) [2017] AATA 2044 (17 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PANKAJDEEP SINGH

CASE NUMBER:  1516116

DIBP REFERENCE(S):  BCC2015/2492565

MEMBER:Mark Bishop

DATE:17 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 17 October 2017 at 1:31pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – Absence of enrolment evidence – No certificate of enrolment

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2 cl 572.223

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 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 to the Department of Immigration for the visa on 3 November 2015. The delegate decided to refuse to grant the visa on 3 November 2015. 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 of Schedule 2 to the Regulations because of lack of academic progress, the applicants’ study history, the applicant’s potential circumstances in Australia, the applicant’s immigration history and the lack of value of the courses to the applicant’s future.

4. The applicant appeared before the Tribunal on 17 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from a migration consultant.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.222

8. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)      the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   (b)     …

9. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

   ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

10. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

11. The applicant applied for a Student visa in early 2012 and this was granted offshore on 4 April 2012. The applicant arrived in Australia on 7 April 2012. The applicant applied for a new Student Visa on 27 August 2015 and this application was rejected on 3 November 2015. The decision record discloses the applicant has not left Australia in that period.

12. At the outset the applicant advised the Tribunal he had received a copy of the decision record, had read it and understood it. The application for a Student visa was rejected because the delegate having considered the circumstances of the applicant was not satisfied the applicant was a genuine temporary entrant but found the applicant was using the Student visa program to maintain residence in Australia.

13. The delegate identified a number of reasons as to why the application for a student Visa was rejected. Firstly the applicant had enrolled in a Bachelor level course in the HE sector, had a 573 visa and had withdrawn early to enrol in a different course in the VET sector. The applicant didn’t take any steps to change his Student visa. The delegate found this to be a breach of condition 8516.

14. In addition the delegate found the applicant had changed his course enrolment on many occasions, had aspirations to open a mechanical workshop but provided no plans or documentation and provided no substantial reasons is why he chose to study a multiplicity of courses. Further the delegate identified concerns the applicant had not left Australia since 2012.

15. In summary the delegate found the applicant was not genuine in his attempt to stay in Australia temporarily.

16. Correspondence was sent from the Tribunal to the applicant on 26 September 2017 advising of the hearing date and requesting four sets of documents be provided that were relevant to the application. The applicant acknowledged receiving the documentation.

17. The Tribunal had requested the applicant provide a copy of a current certificate of enrolment. The applicant advised he had no such certificate. After further discussion the applicant advise the Tribunal he had not been enrolled in any registered course after November 2015, was not currently enrolled in any registered course, did not have a certificate of enrolment for any period of study from November 2015 until the present time and had not applied in recent days or weeks for a certificate of enrolment in a registered course. The Tribunal explained to the applicant the absolute requirement to have a current certificate of enrolment and the applicant acknowledged such advice.

18. When asked to offer reasons the applicant advised the Tribunal he had been ill at different times in 2016 because of issues relating to chickenpox and thyroid. He provided appropriate supporting documentation. He also advised his home had been burgled in 2014 and as a consequence had felt depressed, and medically unwell. He later developed this response to say that he had been under stress and some form of psychological duress because of the burglary, illnesses and a later car accident.

19. The applicant was also represented by a migration consultant. This migration consultant had been appointed on 13 October 2017 and had no knowledge of the matter prior to that date.

20. The migration consultant conceded that the applicant did not meet the criteria for GTE, hadn’t been studying for a two-year period, hadn’t been enrolled in any registered courses for two years and was not enrolled at the present time. He further confirmed that the applicant did not have a certificate of enrolment for the last two years and didn’t have a current certificate of enrolment.

21. The migration agent conceded the lack of a current certificate of enrolment was likely to be a bar to the granting of a student Visa

22. The Tribunal explained that in these circumstances, the Tribunal would be unable to make a favourable decision and would have no alternative but to affirm the decision under review.

23. The Tribunal advised the applicant and his migration agent that he would adjourn the proceedings, review all of the matters on the file and the evidence and issue a written decision in due course.

    CONCLUSION

24. In the absence of any evidence of enrolment in a registered course or the provision of a current certificate of enrolment the Tribunal has no alternative but to find that the applicant does not meet clause 572.222. Failure to meet this requirement means the application cannot succeed.

    DECISION

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

    Mark Bishop
    Member