SIRIMALLA (Migration)

[2017] AATA 2254

SIRIMALLA (Migration) [2017] AATA 2254 (26 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Surya Prakash SIRIMALLA

CASE NUMBER:  1617791

DIBP REFERENCE(S):  BCC2016/949256

MEMBER:Wendy Banfield

DATE:26 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 26 October 2017 at 6:26pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Applicant did not attend hearing – Lack of evidence of enrolment

LEGISLATION

Migration Act 1958, s 65

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 on 10 October 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 7 March 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 in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he had changed courses and level of study in breach of his visa conditions and was not enrolled at the time of decision. The applicant was therefore not a genuine applicant for entry and stay as a student. These findings were based on the applicant’s lack of enrolment, study history, potential circumstances in Australia, immigration history and lack of course value to his future.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

8. Since arriving in Australia in August 2013 as the holder of a Subclass 573 visa, on the evidence available to the Tribunal the applicant has completed an English course and a Certificate III in Commercial Cookery. He did not continue with his original course of study, a Master of Business Information Management and Systems and the education provider cancelled the applicant’s enrolment for non-payment of fees.

9. On 20 September 2017 the applicant was invited to attend a hearing on 24 October 2017. The invitation asked the applicant to provide a copy of a current Certificate of Enrolment as required for the grant of a student visa. The applicant did not respond to the invitation and did not submit any evidence of current enrolment. Prior to the Tribunal hearing, on 24 October 2017 a Tribunal officer attempted to contact the applicant on his mobile phone but there was no response. A telephone call to the applicant’s representative was also unanswered. The applicant did not attend the hearing at the time and place scheduled. As of close of business on 26 October 2017 the applicant has not contacted the Tribunal or submitted any further evidence.

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

11. 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.

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

    DECISION

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

    Wendy Banfield
    Member