Amandeep Singh (Migration) - [2021] AATA 2234

Amandeep Singh (Migration) [2021] AATA 2234 (9 July 2021)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Amandeep Singh
Mr Jatinder Kaur
Mr Amitoj Singh Virk
CASE NUMBER:  1919071
DIBP REFERENCE(S):  BCC2019/2264835
MEMBER:Deputy President J.L Redfern PSM
DATE OF DECISION:  9 July 2021
DATE CORRIGENDUM
SIGNED:12 July 2021
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

In paragraph 20, “s.359C(2)” should be replaced with “s.359C(1)”, so that the decision reads as follows:

“20…However, s.360(2) of the Act provides exceptions to this requirement if the Tribunal decides it can make a favourable decision on the material before it, the applicant consents to the review without appearing or, relevant to the facts of this case, s.359C(1) of the Act applies…”

J.L Redfern PSM
Deputy President
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Amandeep Singh
Ms Jatinder Kaur
Mr Amitoj Singh Virk
CASE NUMBER:  1919071
HOME AFFAIRS REFERENCE(S):          BCC2019/2264835
MEMBER:Deputy President J.L Redfern PSM
DATE:9 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 9 July 2021 at 5:20 PM
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – whether the applicants meet the criteria for enrolment and the genuine temporary entrant criterion – applicants invited to provide information under s.359(2) of the Act – loss of entitlement to a hearing – PRISMS search – notice issued under s.359A of the Act – no response received – main applicant found to not be enrolled in a course of study – decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth), ss. 65, 359, 359A, 359C, 360, 363A, 379A and 499
Migration Regulations 1994 (Cth), Sch 2 cl.500.2, cl 500.3
CASES
Bala v Minister for Immigration and Border Protection [2019] FCA 600
Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40
Singh v Minister for Immigration & Anor [2018] FCCA 3423
SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction No. 69, 18 April 2016
President’s Direction, Conducting Migration and Refugee Reviews, 1 August 2018
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 July 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
I affirm the decision under review. My reasons follow.
BACKGROUND AND RELEVANT LAW
The first named applicant is a 34 year-old national from India. The second named applicant is his spouse. They have a child who was born in Australia and he is the third named applicant. The first named applicant has resided in Australia since 2009. According to the decision record of the delegate, the first named applicant arrived in Australia on a student visa and was enrolled in Certificate III, Certificate IV and a Diploma in hairdressing. It is also recorded that the first named…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amandeep Singh (Migration)

Details

AGLC: Amandeep Singh (Migration) [2021] AATA 2234
Case: [2021] AATA 2234
Decision Date: 9 July 2021

CaseChat Overview and Summary

This matter concerned an appeal by Amandeep Singh and his spouse against the refusal of their applications for a Subclass 500 (Student) visa. The applicants, who had resided in Australia for a significant period, sought to undertake further study in Australia. The first applicant, a 34-year-old national of India, had previously completed various vocational and academic qualifications in Australia and India, and was employed as an Uber driver at the time of his application. His spouse had also completed postgraduate studies in Australia. The applicants' child was born in Australia.

The primary legal issues before the court were whether the first applicant was enrolled in a course of study at the time of the decision, as required by clause 500.211 of Schedule 2 to the Migration Regulations 1994, and if so, whether he was a genuine applicant for entry and stay as a student under clause 500.212(a). The court also considered whether the second and third applicants met the relevant criteria under clause 500.311. The applicants had been invited to provide information and evidence regarding their enrolment and genuine student status, particularly in light of a PRISMS search, but failed to respond.

The court's reasoning focused on the information obtained from the PRISMS search, which indicated that the first applicant had a history of multiple course enrolments and cancellations, often for non-commencement of studies. Crucially, the search revealed that at the time of the decision, the first applicant was not enrolled in any course, and his most recent enrolments had been cancelled shortly after notification of the visa refusal. The court found that the applicants had been given ample opportunity to provide evidence to the contrary but had not done so. Consequently, the court was not satisfied that the first applicant met the enrolment criterion under clause 500.211.

Given the failure to satisfy the enrolment criterion, the court concluded that the applicants did not meet the requirements for the grant of a Subclass 500 (Student) visa. As the applicants did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa, the decision under review to refuse the visas was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

I affirm the decision under review. My reasons follow.BACKGROUND AND RELEVANT LAW The first named applicant is a 34 year-old national from India. The second named applicant is his spouse. They have a child who was born in Australia and he is the third named applicant. The first named applicant has resided in Australia since 2009. According to the decision record of the delegate, the first named applicant arrived in Australia on a student visa and was enrolled in Certificate III, Certificate IV and a Diploma in hairdressing. It is also recorded that the first named applicant applied for two further visas, the details of which are not set out in the decision record, but it is recorded that it appeared the first named applicant had complied with the conditions of those visas. The third named applicant was born in 2018. On 25 April 2019 the applicants applied for the visas. According to the application, the first named applicant enrolled in Advanced Diploma in Leadership and Management, which he stated he commenced on 18 February 2019. In a letter attached to his application, the first named applicant stated that following the completion of this course he proposed to complete the Graduate Diploma of Management, and that these courses would prepare him for management level positions in small, medium and large organisations in all sectors. He provided Certificates of Enrolment for each of these courses. According to the application, the first named applicant had previously completed his Bachelor of Arts at a university in India and prior to this, a Diploma in Textile Processing also in India. It is also recorded that the first named applicant was an uber driver with Coles Services at the time of his application. The second named applicant also provided a statement in support. She stated that she arrived in Australia in 2014 for higher studies and completed an Advanced Masters of Business Administration (Management) from the Queensland University of Technology in 2016. She stated that she and the first named applicant went back to India for three months before returning to Australia and that complications with her pregnancies compromised the first named applicant’s studies. The second named applicant stated that she supported the recommencement of her husband’s studies as a ‘stepping stone’ for him to achieve his goal to start a successful career in management. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. For the visa to be granted, the applicant is required to meet the primary criteria set out in clause 500.2 of Schedule 2 to the Migration Regulations 1994 (the Regulations). These criteria include requirements relating to enrolment (cl 500.211), access to funds and financial capacity (cl 500.214) and being a genuine applicant for entry and stay as a student (cl 500.212). All criteria must be satisfied at the time a decision is made on the application. The applicant must also satisfy health insurance and public interest criteria and, if required by the Minister, to satisfy specified English proficiency requirements.[1] [1] Clauses 500.215, 500.213 and 500.217 respectively of Schedule 2 to the Regulations.

Evidence

Evidence Before The Court

In the absence of any response, I have decided to proceed to determine the review on the basis of the material provided by the applicant to the Department and to the Tribunal and the results of the PRISMS search.CONSIDERATION OF CLAIMS AND EVIDENCE As such, the issues for determination in this case are:(1)Whether at the time of this decision, the first named applicant is enrolled in a course of study such that cl.500.211 is met, and(2)If so, whether the first named applicant is a genuine applicant for entry and stay as a student as required by cl.500.212(a) and(3)If so, whether the second and third named applicant meet the requirements of cl 500.311. The PRISMS search dated 28 May 2021 reveals that the first named applicant enrolled in seven different courses, some on multiple occasions, and has had his enrolment cancelled in relation to all courses. The PRISMS search reveals that the first named applicant enrolled in Certificate III in Hairdressing on five occasions during 2009 (or enrolment variations) and that his enrolment was cancelled on each occasion for ‘non-commencement of studies’. The search also reveals that he enrolled in the Certificate IV, also on multiple occasions through variations with each course due to commence at different times during 2010, and that his enrolment was cancelled on each occasion, again for ‘non-commencement of studies’. There was a similar pattern for the Diploma of Hairdressing Salon Management and the Diploma of Hospitality in 2010 and 2011. Thereafter, there is no record of enrolments for an extended period until the first named applicant enrolled in the Advanced Diploma of Leadership and Management in the Graduate Diploma of Management (Learning) prior to his application. The PRISMS search reveals that the Advanced Diploma of Leadership and Management was due to start on 18 February 2019 and would have finished on 1 March 2020. This course is recorded as ‘cancelled’ and the variation reason, recorded on 29 July 2019, was ‘student notifies cessation of studies’. The Graduate Diploma of Management (Learning course) was due to commence on 3 March 2020 and to finish on 11 April 2021. It is recorded that this course was also ‘cancelled’ on 29 July 2019 because of ‘non-commencement of studies’. It therefore appears from this search that within a month of being notified of the refusal of the student visas, the first named applicant ceased his studies. In summary, the PRISMS search reveals the applicant is not currently enrolled in a course and has failed to complete any course. The results of this search that the first named applicant was not enrolled were disclosed to the applicants and they were invited to comment or respond to this by letter dated 31 May 2021. They did not do so by the nominated date or at all. There is no evidence before me to suggest that the PRISMS record is incorrect and that the first named applicant is currently enrolled in a course of study. Ultimately, it is for the applicants to satisfy the Tribunal that they meet the relevant criteria. The Tribunal has raised with them the critical issues in respect of which it required information and evidence. The applicants have been given two opportunities to provide this information but have not done so. Apart from filing the application for review two years ago, the applicants have not provided any further material or otherwise engaged with the review. Based on the material before me, I am therefore not satisfied that at the time of this decision, the first named applicant is enrolled in a course of study and accordingly I find that cl.500.211 is not met.

Decision

Reasons for decision

Given the above findings, I find that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicants do not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.DECISION The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.J.L Redfern PSMDeputy President

Ratio Decidendi

Legal Principle Established

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