Acuna Plaza (Migration)

[2020] AATA 2755

Acuna Plaza (Migration) [2020] AATA 2755 (27 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Victor Andres Acuna Plaza

CASE NUMBER:  1908237

DIBP REFERENCE(S):  BCC2016/944924

MEMBER:Glenn O'Brien

DATE:27 May 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 27 May 2020 at 5:43pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Federal Court of Australia remittal – genuine temporary entrant – enrolment status – not enrolled in a course of study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 572.223, 572.231

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 16 August 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 7 March 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 applicant provided the Tribunal with a copy of the delegate’s reasons for decision with the application for review. 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(1)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 16 June 2017 and the Tribunal affirmed the decision of the delegate on 1 September 2019. The applicant applied for a review of the decision in the Federal Circuit Court of Australia (FCCA) and subsequently appealed the decision of the FCCA to the Federal Court of Australia (FCA). The FCA remitted the matter on 26 March 2019 for a rehearing of the matter according to law.

5. On 6 May 2020 the applicant was invited to a hearing before the Tribunal at 9.00 am on

   
   

   21 May 2020. On 6 May 2020 the applicant wrote to the Tribunal by way of email which was received on 7 May 2020 stating he was unable to attend the hearing as he was working on a private yacht in Italy and would not be able to assist the hearing because of the time difference as it would be 1.00 am in Italy.

6. On 11 May 2020 the Tribunal wrote to the applicant informing him that the Tribunal had rescheduled the hearing for 3.30 pm on 21 May 2020 to take account of the time difference.

7. Pursuant to s.359A of the Act, the Tribunal wrote to the applicant on 12 May 2020 in the following terms:

   “In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   The information concerns your record in the Provider Registration and International Student Management System, a database known as PRISMS. You are provided with a copy of your PRISMS record in an attachment to this letter. The information is relevant to the review because it indicates:

   1. that you are not presently enrolled in a course of study; and

   2. that your most recent enrolment has been cancelled.

   The information as described above might cause the Tribunal to find you are not currently enrolled in a registered course and/or that your most recent enrolment has been cancelled. The Member has not made up their mind on the information. If however the Member were to reach one or both of these conclusions they would affirm the decision to refuse to grant the visa.

   You are invited to give comments on or respond to the above information in writing or at your hearing.

   …

   If we do not receive your comments or response within the period allowed or as
   extended, we may make a decision on the review without taking any further action to
   obtain your views on the information.”

8. On 21 May 2020 at 3.30 pm the Tribunal attempted to contact the applicant by telephone for the purposes of conducting the hearing. The contact number provided to the Tribunal was for a telephone in Peru. A person identifying herself as the applicant’s sister answered the telephone and stated the applicant was not there. The person gave the Tribunal a contact number for the applicant in Italy. The Tribunal attempted to contact the applicant on that number without success. Shortly afterwards, the applicant telephoned the Tribunal directly and the hearing proceeded by way of telephone.

9. The applicant informed the Tribunal that he prepared a response to the Tribunal regarding the rescheduled hearing but it was not sent. The applicant also acknowledged receiving the Tribunal’s letter sent pursuant to s.359A of the Act. The Tribunal is satisfied the applicant was made aware of the issues set out in the Tribunal’s letter dated 12 May 2020.

10. The applicant appeared before the Tribunal on 22 May 2020 to give evidence and present arguments by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue before the delegate was whether the applicant met the criterion in cl.572.223(1). However, arising from the evidence of the applicant the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa. The applicant acknowledged understanding the determinative issue before the Tribunal had changed and was provided the opportunity to respond to that issue at hearing.

13. Notwithstanding, the Tribunal wrote to the applicant pursuant to s.359A given the period in which to respond had not elapsed and the Tribunal put to the applicant that it had on the Tribunal file a copy of the applicant’s enrolment records from the Provider Registration International Student Management System (PRISMS) database pursuant to s.359AA of the Act. The Tribunal explained to the applicant the relevance of the records to the review before the Tribunal, in particular the cancellation of a number of confirmations of enrolment for either cessation or non-completion of studies, the changes in field of study from marketing to hospitality management to hospitality, and the absence of any current confirmation of enrolment. The Tribunal explained the consequences of relying on the information and confirmed the applicant understood the consequences of the information being relied upon. The Tribunal offered the applicant an opportunity to seek an adjournment to consider the information and comment on or respond to the information. The applicant did not seek an adjournment and elected to respond to the information during the course of the hearing.

14. 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 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.

15. In reviewing the applicant’s PRISMS record, the applicant first obtained a confirmation of enrolment for an IELTS Preparation Course of 17 September 2012. The applicant subsequently held a number of confirmations of enrolment with his last confirmation of enrolment being for a Diploma of Hospitality Management which was cancelled on

    
    

    27 February 2018 for non-payment of fees. Notably, his most recent previous confirmation of enrolment for a Diploma of Hospitality Management was cancelled on 15 September 2017 for non-commencement of study. The applicant’s last completed study in Australia was a Certificate IV in Commercial Cookery which ended on 28 July 2017.

16. The applicant told the Tribunal that he did not obtain another confirmation of enrolment because he was awaiting the outcome of his Court proceedings. The applicant told the Tribunal he left Australia in June 2019 and works on a private yacht in Italy as a sous-chef earning approximately USD4,000 per month. The applicant stated he was currently acting as head chef. The applicant told the Tribunal he has around 16 years’ experience as a chef.

17. The applicant told the Tribunal that he wanted to continue to study in Australia for a Diploma of Hospitality Management. There is no evidence before the Tribunal that the applicant is now enrolled in or has a current offer of enrolment in any principal course of study. The Tribunal explained to the applicant that it was a requirement at the time of the decision to be enrolled in a course of study. As the applicant acknowledged receiving the Tribunal’s letter sent pursuant to s.359A which requested a response by 26 May 2020, the Tribunal granted the applicant until 26 May 2020 to provide any further information in response prior to making a decision.

18. At the time of decision, no further submissions or evidence has been received by the Tribunal. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.

19. Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 590 (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 he made the visa application on the basis of being a Student Guardian.

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

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Student (Temporary)

    
    

    (Class TU) visa.

    Glenn O'Brien
    Member