THAPA (Migration)

[2018] AATA 136

THAPA (Migration) [2018] AATA 136 (1 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Milan THAPA

CASE NUMBER:  1617746

DIBP REFERENCE(S):  BCC2016/2228776

MEMBER:Jennifer Cripps Watts

DATE:1 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 01 February 2018 at 6:11pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – No proof of enrolment in a course of study

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994 r 1.40A Schedule 2 cls 570.232, 571.232, 572.223, 572.231, 573.231, 573.111, 574.111, 574.231, 575.111, 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 14 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 30 June 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 the delegate was not satisfied the applicant is a genuine temporary entrant.

4. The visa that is the subject of this review was refused on14 October 2016.  The applicant applied for review by this Tribunal on 25 October 2016, within time, and provided the Tribunal with a copy of the Department’s decision to refuse his student visa.  The applicant’s matter was constituted to this member and a written invitation to attend a hearing was sent to the applicant on 8 January 2018, attaching a copy of an extract from the Migration Act 1958, Direction Number 53 – Assessing the Genuine Temporary Entrant criterion for Student Visa and Student Guardian Visa Applications, for his ease of reference. 

5. The invitation to the hearing also included information relating to what types of evidence and statements the applicant should consider providing to the Tribunal before his hearing, specifically addressing the issue of whether he “...is a genuine applicant for entry and stay as a student by referring to Direction No.69.”  The applicant was informed he should provide a copy of his current Certificate of Enrolment (COE).   

6. The applicant requested a postponement on medical grounds.  The medical certificates he provided simply said he was unfit for work up until 31 January 2018.  The Tribunal hearing was scheduled on 1 February 2018.  The documentary evidence in support of the postponement was considered.  The was advised in writing by the Tribunal that the postponement was not granted because he had not provided sufficient or reliable evidence that satisfied the Tribunal he could not attend.  He was advised he could bring documents with him to the hearing if he wished.  He handed up documents at the hearing which have been considered and placed on the Tribunal file.

7. The applicant appeared by video link from Perth before the Tribunal in Sydney on 1 February 2018 to give evidence and present arguments.  

8. The applicant was represented in relation to the review by his registered migration agent, Mr Derrick Peters.  However, the applicant said at the hearing he does not consider Mr Peters represents him anymore.  He was told at the hearing that if he wishes to remove Mr Peters as his nominated representative and authorised recipient, he should do so in writing.  He said he would.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. 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.

12. 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.

13. 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.

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

    DECISION

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

    Jennifer Cripps Watts
    Member