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1112427 [2013] MRTA  1676  (8 July 2013)

Last Updated: 8 August 2013

1112427  [2013] MRTA 1676  (8 July 2013)

DECISION RECORD

APPLICANT: Mr Gurpreet Singh

MRT CASE NUMBER: 1112427

DIAC REFERENCE(S): CLF2011/153947

TRIBUNAL MEMBER: Patrick Francis

DATE: 8 July 2013

PLACE OF DECISION: Melbourne

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

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 and Citizenship 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 and Citizenship for the visa on 6 September 2011. The delegate decided to refuse to grant the visa on 9 November 2011.
3. The delegate 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).
4. The applicant applied to the Tribunal on 21 November 2011 for review of the delegate’s decision.

RELEVANT LAW

5. 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 Regulations. For applicants who apply as a student, the subclass that can be granted in any particular case depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course, and, with limited exceptions, the subclass for which that type of course was specified by the Minister under r.1.40A (see cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2) or, for Subclass 576, approval of the course by the AusAID Minister or the Defence Minister (see Part 576 of Schedule 2).
6. The issue before the delegate was whether the applicant met the criterion in cl.572.223. However, the issue before the Tribunal is whether, at the time of decision, the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that meets the requirements of the Regulations.
7. With limited exceptions not relevant to this case, 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 the subject of a current offer of enrolment in, a course of study that is a principal course, and specified under r.1.40A for the subclass at the time of application.

CLAIMS AND EVIDENCE

8. The Tribunal has before it the Department’s file relating to the applicant.
9. By letter, dated 11 June 2013 the Tribunal wrote to the applicant inviting him to appear at a hearing to give evidence and make submissions in support of his application. The Tribunal hearing invitation letter advised the applicant that the hearing had been scheduled for 5 July 2013 at 11.30 am. In part, the letter also set out: "Please note that if you fail to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it" The applicant did not attend the hearing nor otherwise contact the tribunal. In accordance with section 362B of the Migration Act the Tribunal determined to decide the matter without taking any further action to allow or enable the applicant to appear before it.
10. The applicant has not provided any evidence that he is currently enrolled or subject to an offer of enrolment.

FINDINGS AND REASONS

11. The applicant has applied for a Student (Temporary) (Class TU) visa for the purpose of study in Australia. There is no evidence before the Tribunal that the applicant is currently enrolled in or the subject of a current offer of enrolment in any course of study. The Tribunal is therefore not satisfied that the applicant is enrolled in or the subject of a current offer of enrolment in a course of study that is a principal course and of a type specified for any of subclasses 570, 571, 572, 573, 574 or 575. On that basis, the Tribunal finds that the applicant does not satisfy cl.570.232, 571.232, 572.231, 573.231, 574.231 or 575.231 of Schedule 2 to the Regulations.
12. Additionally, there is no evidence before the Tribunal which suggests that the applicant meets the criteria for either Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian), the remaining subclasses of the Student (Temporary) (Class TU) visa.

CONCLUSIONS

13. As the Tribunal has found the applicant does not meet an essential requirement of Schedule 2 for visa subclasses 570, 571, 572, 573, 574 and 575, and as no evidence has been provided on which the Tribunal could be satisfied that the applicant meets the criteria for the remaining Student (Temporary) (Class TU) visa subclasses, 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.
    

Patrick Francis
Member