Budhiraja (Migration)

[2021] AATA 890

Budhiraja (Migration) [2021] AATA 890 (9 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nitish Budhiraja

CASE NUMBER:  1834246

HOME AFFAIRS REFERENCE(S):          BCC2018/1240686

MEMBER:Mark Bishop

DATE:9 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 09 March 2021 at 10:30am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment status – non-appearance before the Tribunal – insufficient evidence of current enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.211

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 Home Affairs on 21 November 2018 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 15 March 2018. 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.

3. On 19 February 2021 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 9 March 2021. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

4. It is the practice of the Tribunal to conduct “preliminaries” prior to the commencement of the hearing. These preliminaries are a courtesy to review applicants and basically explain the process of the hearing which will commence at a later time. The Tribunal contacted the applicant on numerous occasions immediately prior to 9.30am on the day of the scheduled review hearing. There was no response to any of these phone calls. The Tribunal also attempted to contact the applicant by phone to commence the hearing and the applicant did not respond to the phone call (for full detail see relevant Case Note).

5. The applicant did not appear before the Tribunal.

6. The review applicant did not appear before the Tribunal for the phone hearing on the day and at the scheduled time. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(4) and the invitation has not been returned to sender. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

7. The applicant provided a copy of the decision record to the Tribunal.

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

   ONSIDERATION OF CLAIMS AND EVIDENCE

   Enrolment (cl.500.211)

9. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

10. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

    Significance of Enrolment Criterion

11. Producing evidence of current enrolment is a critical first step towards obtaining a student visa. Such evidence shows that the applicant has, prior to the Tribunal making its decision, entered into a legally binding contract with a registered course provider. That contract gives rise to several significant obligations. First, it obliges the course provider to provide the applicant with a pre-determined course of education or training over a specified period. Second, it obliges the applicant to pay for the course. Third, it obliges the applicant to complete the course requirements to receive a testament from the course provider as to what the applicant has achieved by way of formal qualification. An enrolment therefore represents a present and operating commitment by the applicant to complete a course of study. It is persuasive evidence of a tangible and immediate need for a student visa.

12. An enrolment continues to be of legal significance once a student visa is issued. All student visas are subject to a condition that the visa holder remains enrolled in a registered course of study. That condition operates on a continuing basis every day the visa remains valid. If a student visa is issued to an applicant who is not enrolled in a course of study, the visa will be breached as soon as it is granted.

13. The Tribunal must therefore be presented with evidence that shows the applicant is currently enrolled in a registered course of study. Absent such evidence, a student visa cannot sensibly be grated. Indeed, in any case for a student visa, consideration of whether all other primary criteria are met, as contained in clauses 500.211-500.218 of the Regulations, is premised on the enrolment criterion in clause 500.211 first being satisfied. If clause 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.

14. Clause 500.211 provides:

    500.211 One of the following applies:

    (a) the applicant is enrolled in a course of study;

    (b) if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

    (c) if the applicant is a Foreign Affairs student—the applicant has the support of     the Foreign Minister for the grant of the visa;

    (d) if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.

15. On 20 November 2020 the applicant wrote to the Tribunal and provided a new contact phone number.

16. On 1 December 2020 the Tribunal wrote to the applicant and requested he provide “a copy of a current Confirmation of Enrolment (CoE) as required for the grant of a student visa”

17. The applicant did not respond to this request to provide a CoE. The applicant did not provide a current CoE to the Tribunal.

18. On 9 February 2021 the Tribunal wrote to the applicant and advised as follows:

    ·… please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:

    ·A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl. 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.

19. The Tribunal is of the view the applicant was in receipt of written notice that in the review application the determinative and only issue was proof of enrolment in an approved course of study.

20. The applicant did not provide the information as requested to the Tribunal in response to the letter summarised in paragraph 18 above.

21. Prior to the hearing the applicant did not provide a copy of a current COE or any form of proof of current enrolment in a course of study to the Tribunal.

22. As outlined above the applicant did not appear before the Tribunal.

23. There is insufficient evidence of current enrolment in a course of study before the Tribunal.

24. The applicant did not appear before the Tribunal.

25. Despite multiple requests the applicant has not provided a copy of a current COE or any form of proof of enrolment in an approved course to the Tribunal.

26. Crucially however, the Tribunal does not have before it current evidence that the review applicant is presently enrolled in a course of study as required by cl.500.211(a). It follows that the Tribunal is not satisfied that the review applicant is presently enrolled in a course of study as required by cl.500.211(a).

27. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Mark Bishop

    
    

    Member