WU (Migration)

[2017] AATA 3150

WU (Migration) [2017] AATA 3150 (20 September 2017)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr ZHIPING WU

CASE NUMBER:  1612749

DIBP REFERENCE(S):  BCC2016/1443496

MEMBER:  Penelope Hunter

DATE AND TIME OF

ORAL DECISION AND REASONS:          20 September 2017 at 12:24 pm (NSW time)

DATE OF WRITTEN RECORD:               4 October 2017

PLACE OF DECISION:  Sydney

DECISION:  The Tribunal affirms the decision under review.

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether the applicant is enrolled in, or is the subject of a current of enrolment in, a course of study – Applicant not enrolled or subject of an enrollment – Applicant has not studied for a significant amount of time – Applicant could not recall details of the course he was intending to study – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 573.223

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 July 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 573 visa under the Migration Act 1958 (the Act).

1. At the hearing on 20 September 2017 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. The applicant applied for this visa on 13 April 2016.

1. At that time he was seeking to undertake study at the higher education 573 level, which is the relevant subclass. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.573. 223 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The reason for that was because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

1. The issue before the delegate was whether the applicant met the criterion in clause 573.223. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

1. With limited exceptions, all the clauses for subclasses of student visas 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 Regulations for the subclass of student visa.

1. The delegate set out in their decision on 28 July 2016 they set out that one of the issues of concern was that the Confirmation of Enrolment of the applicant in the Bachelor of Interactive Media was cancelled. This was cancelled on 11 March 2015, due to non- commencement of studies. The applicant has been on notice since that time that this is a relevant issue for his application.

1. With the application for review to the Tribunal no additional documents were supplied.

1. With his invitation to attend the Tribunal hearing, sent to the authorised representative of the applicant on 22 August 2017, the applicant was requested to submit to the Tribunal a copy of his current Confirmation of Enrolment for the grant of the student visa.

1. The Tribunal has considered a requested for a postponement for two weeks to allow the applicant to provide further evidence however it was not considered appropriate to grant a further postponement. The applicant had over a year to obtain enrolment in a course of study. The applicant could not remember the last time he had studied. He could not recall correctly the course that he was proposing to study as part of the visa application. He did not know any details about a course of study he would propose to study in the future. For these reasons the Tribunal was not satisfied that the applicant did intend to study.

1. As 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. The requirements of clause

   573.231. Neither is the requirements of similar clauses for other subclasses of visas.

1. There is no evidence before the Tribunal that the applicant would meet the requirements of any other subclass of Class TU visa. This application is not made on the basis of the

applicant being supported by the relevant Minister or on the basis of being a Student guardian.

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

DECISION

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

Penelope Hunter Member