Wangdi (Migration)

[2017] AATA 2482

Wangdi (Migration) [2017] AATA 2482 (22 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karma Wangdi

CASE NUMBER:  1604714

DIBP REFERENCE(S):  BCC2016/652222

MEMBER:Mara Moustafine

DATE:22 November 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 22 November 2017 at 5:19pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 – No completion certificate for business course – No certificate of enrolment – Not a Genuine temporary entrant  

LEGISLATION
Migration Act 1958 s 65
Migration Regulations 1994 r 1.40A, Schedule 2 cls 570.232, 571.232, 572.231, 572.223, 573.111, 573.231, 574.111, 574.231, 575.111, 575.231, 572.223(1)(a) , 576.229

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 30 March 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 15 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 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 was not satisfied that the applicant genuinely intended to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 22 November 2017 to give evidence and present arguments.

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. 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.

8. 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.

9. On 5 October 2016, the applicant’s migration agent provided to the Tribunal a submission and documents in support of the applicant’s claims, including a letter from Stanley College dated 29 August 2016 confirming the applicant’s enrolment status in Certificate II in Business, Certificate III in Business Administration, Diploma of Business and Advanced Diploma of Business.

10. In the Tribunal’s hearing invitation letter dated 31 October 2017, the applicant was requested to provide to the Tribunal at least seven days ahead of his scheduled hearing all documents on which he intended to rely to establish that he met the criteria for the visa. These included copies of his current Certificate of Enrolment (COE), documents that showed he was currently enrolled in a registered course, or had an offer of enrolment in a registered course as required for the grant of a student visa; documents that showed his past studies in Australia, including copies of all his attendance certificates, academic transcripts and certificates of completion. However, no such information was provided by the applicant.

11. At hearing the applicant told the Tribunal that he did not hold a current COE and had not been studying consistently since his visa was refused. The applicant said he had studied a Certificate II in Business but had not received a completion certificate as he did not pass the course. The applicant’s agent told the Tribunal that he had asked the applicant for a copy of his COE but none had been provided.

12. Therefore, 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.

    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. nor has made the visa application on the basis of being a Student guardian.

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

    DECISION

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

    Mara Moustafine
    Member