MIGRATION REVIEW TRIBUNAL DECISIONS
Australian Student Visas
December 2008
0801597
28 November 2008, Sydney
Mr D O’Brien, Principal Member
STUDENT (TEMPORARY)(CLASS TU) VISA - SUBCLASS 573 – CL.573.224(a) – PUBLIC INTEREST CRITERION 4003(a) – FOREIGN POLICY INTERESTS – A delegate of the Minister of Immigration and Citizenship refused to grant the visa applicant a Student (Temporary)(Class TU) visa on the basis that she did not satisfy cl.573.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she did not meet the Public Interest Criterion (PIC) 4003. The former Foreign Minister made a determination that the applicant, whose father was the Minister in Zimbabwe’s Zanu-PF Parliament, was a person whose presence in Australia would be contrary to Australia’s foreign policy interests. The current Foreign Minister decided not to revoke that determination. The applicant claimed her father had been seeking to retire for some time and would not be a Minister in any power-sharing government expected to be formed with Morgan Tsvangirai’s Movement for Democratic Change Party. She also claimed she had never supported the Mugabe Government and she was not a threat to Australia.
Held: Decision under review affirmed
The Tribunal found the determination made by the former Foreign Minister remained in force. It could not go behind the determination and make its own assessment of what was contrary to Australia’s foreign policy interests. The Tribunal commented that the applicant had made representations to the Minister, but, in its assessment, the circumstances referred to were highly unlikely to cause him to revoke the determination. The applicant’s father was still a Government Minister even if only in a caretaker capacity. Although it was not a matter for it, the Tribunal observed that wider considerations than whether the applicant was a threat to Australia may arise in relation to the making of a determination by the Foreign Minister. The Tribunal was not satisfied that the applicant met PIC 4003 and therefore she did not satisfy cl.573.224(a) of the Regulations.
0804221
3 December 2008, Melbourne
Ms K Synon, Member
STUDENT (TEMPORARY) (CLASS TU) VISA - SUBCLASS 573 – 116(1)(B) CANCELLATION - CONDITION 8202(2)(a) – EXCEPTIONAL CIRCUMSTANCES BEYOND VISA HOLDER’S CONTROL - A delegate of the Minister for Immigration and Citizenship cancelled the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 on the basis that the applicant had not been enrolled and studying in a full time CRICOS registered course since 13 July 2007. This was not disputed by the applicant. However, the applicant claimed there were exceptional reasons beyond his control which prevented him from maintaining his course enrolment. He explained that he was supporting himself with an education scholarship from an Indian bank and that his father was his main sponsor. He claimed his father became ill and was unable to work which resulted in the bank refusing to release further funds for the applicant’s enrolment fees in Australia. He said his father had high blood pressure and eyesight problems and while he is ok now it is unlikely he would be able to work again. The applicant had not told his father that the bank had refused to release more money and intended to work and support himself while studying. Medical reports for the applicant’s father were provided.
Held: Decision under review set aside
The Tribunal found that the applicant had not been enrolled in a registered course since July 2007 and accordingly the applicant had not complied with condition 8202(2)(a). Whilst the diagnosis of an applicant’s parent with a medical condition would normally not constitute exceptional circumstances, the current situation was somewhat different. The Tribunal accepted the medical evidence that the applicant’s father was ill and could no longer work. The Tribunal accepted that the applicant’s ongoing finance from the bank was suspended until his father could provide evidence of his income. It considered that having his finances suspended affected the applicant’s ability to enrol in his further English course as required by his education provider and that this amounted to exceptional circumstances beyond his control. The Tribunal considered further whether its discretion to cancel the visa under s.116(1)(b) should be exercised in all the circumstances. The Tribunal noted that the applicant had successfully completed three English courses and complied with all attendance requirements and was satisfied that the purpose of the applicant’s travel to and stay in Australia was to study and that he intended to re-enrol if he received a positive outcome in relation to the review. The Tribunal concluded that the visa should not be cancelled.
071908707
27 November 2008, Sydney
Ms L Nicholls, Member
STUDENT (TEMPORARY) (CLASS TU) VISA - SUBCLASS 572 – CL.572.222 – CONFIRMATION OF ENROLMENT - A delegate of the Minister for Immigration and Citizenship refused to grant the applicant a Student (Temporary) (Class TU) subclass 572 visa on the basis that he did not meet cl.572.222 of Schedule 2 to the Migration Regulations 1994 (the Regulations), because there was no evidence that the applicant was currently enrolled in an acceptable course of study and it appeared that his previous enrolment had been cancelled. The applicant had successfully completed the first semester of a course in Community and Welfare Work at Sterling College but could not enrol in the second semester on the day of enrolment. He claimed that he paid a late fee to Sterling College and an insurance fee to enrol, however, the college claimed they had no record of his enrolment and his visa had been cancelled. The applicant later submitted a letter of offer from Canterbury Technical Institute, which was issued provisionally subject to satisfactory completion of visa formalities, acceptance of offer and payment of fees and charges. The applicant’s representative stated that he would receive his confirmation of enrolment on 24 November 2008 and that it would be faxed to the Tribunal that day. However, no confirmation of enrolment was received.
Held: Decision under review affirmed
The Tribunal was not satisfied that the applicant had given the Tribunal a certificate of enrolment relating to a course of study in an acceptable course. There was no evidence which suggested that the application for the visa was made on a form 157E or that there had been a failure of electronic transmission which had prevented the education provider from sending a certificate of enrolment. Accordingly, the Tribunal was not satisfied that the applicant had met the requirements of cl.572.222 at the date of decision. There was no evidence to suggest that the applicant could meet the criteria for any of the other Student (Temporary) (Class TU) visa subclasses. The Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
0800023
3 December 2008
Mr B MacCarthy, Senior Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 572 (VOCATIONAL EDUCATION AND TRAINING SECTOR) – CL.572.223(2)(a)(i)(A) – ENGLISH LANGAUGE PROFICIENCY - A delegate of the Minister for Immigration and Citizenship refused to grant the visa on the basis that the applicant did not meet cl.572.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The applicant had not provided any evidence that he met the English language proficiency requirements of Schedule 5A to the Regulations, apart from results of an IELTS test taken 7 months after the date of application. Before the Tribunal, the applicant sought to argue that an IELTS test taken after the date of the visa application could meet the requirements of ‘less than 2 years before the date of application’. The applicant further asked the Tribunal to exercise its ‘discretionary power’ to make a favourable decision. It was submitted that the applicant had initially commenced a ‘Diploma in IT’ at Mercury College in 2007, but that the institution was shut down before the applicant could finish his course. It was further submitted that the applicant was working with an Australian company who were seeking to sponsor him and, if he were obliged to leave the country, the employer may lose interest.
Held: Decision under review affirmed
The Tribunal found that the applicant had not taken any IELTS test ‘less than 2 years before the date of application’ and therefore could not satisfy item 5A407. The Tribunal further considered whether the applicant could meet item 5A407(d)(iii), having completed a ‘substantial part’ of a course conducted in English leading to a Certificate IV or higher qualification as a holder of student visa. The Tribunal found that the applicant had completed more than 40 units between March 2007 and the end of 2008. However, he was the holder of a student visa only until 2 April 2007 and, therefore, did not meet the requirements of item 5A407(d)(iii). The Tribunal further noted that while its subjective assessment was that the applicant had proficiency in English adequate for the purposes of the visa, the Tribunal lacked any discretion to waive the requirements of item 5A407.
Precis, The MRT-RRT Monthlthy Decisions Bulletin, Migration Refugee Tribunal - Refugee Tribunal, 2 February 2009, copyright Commonwealth of Australia reproduced by permission.
