Chege (Migration)

[2019] AATA 5212

Chege (Migration) [2019] AATA 5212 (3 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Stephen Njau Chege

CASE NUMBER:  1814748

HOME AFFAIRS REFERENCE(S):           BCC2018/1220562

MEMBER:David Thompson

DATE:3 September 2019

PLACE OF DECISION:  Perth

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

Statement made on 03 September 2019 at 10:43am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – not enrolled in a course of study at time of decision – opportunity to obtain a new Confirmation of Enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

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 4 May 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 14 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. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations), because she was not satisfied that the applicant genuinely intended to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 24 July 2019 to give evidence and present arguments.

5. The applicant was assisted in relation to the review by his registered migration agent. However, his agent did not appear at the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

8. While the issue before the delegate in this case was whether the applicant is a genuine temporary entrant for the purposes of cl.500.212 of Schedule 2 of the Regulations, the issue before the Tribunal became whether, at the time of decision, the applicant meets the enrolment requirement in cl.500.211(a) for a student visa. This issue emerged in the course of the hearing in the following manner.

9. On 20 May 2019 and pursuant to s.359(2) of the Act the Tribunal invited the applicant to provide information by completing and returning to the Tribunal a Request for Student Visa Information form. The applicant provided his completed Request for Student Visa Information form (Response) on 31 May 2019. In his Response the applicant stated that he was presently enrolled in a Diploma of Business course at Kingston International College, and that his course was due to finish in June 2019.

10. Just prior to hearing, the Tribunal obtained a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS). That record showed a significant number of course cancellations. It also showed that the applicant had completed his Diploma of Business on 28 June 2019, approximately 1 month before the hearing. That entry was the latest entry in the applicant’s PRISMS record. There was no indication in that record that the applicant had enrolled in any further course, or held a current Confirmation of Enrolment (CoE).

11. These features of the applicant’s PRISMS record were put to him at hearing, in accordance with s. 359AA of the Act. The applicant gave explanations for his course cancellations. The Tribunal then turned to the issue of the applicant’s apparent lack of a current CoE, and explained to the applicant that if he did not have a CoE at the time the Tribunal came to make its decision on his review application, the determinative issue would change. The determinative issue would no longer be whether the applicant was a genuine temporary entrant. Rather, it would be the issue of whether the applicant was enrolled in a registered course for the purposes of cl.500.211(a) of Schedule 2 of the Regulations. The applicant confirmed to the Tribunal that he understood this.

12. The applicant also confirmed that he was not currently enrolled in any course of study. He was given an opportunity to address the Tribunal on this matter. He explained that after he had completed his Diploma of Business course, he had been contemplating a move interstate to pursue his studies and that he had been investigating his options. It was for this reason that he had not immediately obtained a further CoE. The applicant also explained that he had raised the question of whether or not he needed to have a current CoE with his registered migration agent, and had been told that he should simply explain his situation to the Tribunal at hearing and ask for leniency. The Tribunal explained to the applicant that the enrolment criterion provided for in cl.500.211(a) is a mandatory criterion and that the Tribunal has no discretion to dispense with it.

13. The applicant assured the Tribunal that he could obtain a CoE within 2 weeks at most, and asked for an opportunity to do so. In view of the fact that the applicant had finished his last course so shortly before hearing, the Tribunal decided to give him the opportunity to obtain a new CoE and provide it to the Tribunal. He was given two weeks in which to do so, and the Tribunal continued with the hearing, making enquiries and receiving evidence relevant to the issue of whether or not the applicant was a genuine temporary entrant. It did so in case the applicant was able to provide a fresh CoE in the time allowed. The applicant confirmed that he understood this.

14. The applicant did not provide the Tribunal with a copy of a new CoE within 2 weeks of the hearing. Rather, on 12 August 2019 the applicant sent the Tribunal an email message stating that “the university application is taking long[er] than I thought” and asking for more time to “come up with a COE or a letter of offer for my bachelor of commerce semester 1 2020.”

15. On Monday, 19 August 2019 the applicant sent the Tribunal another email message, stating that “I have applied to two schools and they both have refused to offer me a COE on the basis that I currently hold a bridging visa and not a student visa.” He went on to say “I have contacted one of the universities applied for; Charles Darwin University and then have asked for documentation to prove that a visa would be granted if a COE was made available.” To the extent that this message is a request to the Tribunal to provide such a document, the Tribunal cannot accede to it. The Tribunal accepts that the applicant has made efforts to obtain a new CoE. However, it is not the Tribunal’s role to facilitate the applicant’s obtaining a CoE. The Tribunal’s role in this case is to undertake a merits review of the applicant’s refused visa application, on the basis of the evidence as it stands at the date of the Tribunal’s decision.

16. In view of the fact that the time allowed to the applicant to address the issue of his lack of a current CoE has expired without a current CoE being obtained and provided, and in view of the applicant’s post-hearing correspondence with the Tribunal, the Tribunal will now make its decision on the basis of the determinative issue in this case, namely, the issue of whether the applicant meets the enrolment requirement in cl.500.211(a) of Schedule 2 of the Regulations.

    Enrolment (cl.500.211)

17. 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.

18. ‘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.

19. On the basis of the evidence recounted in paragraphs 7 to 16 above, and the considerations there discussed, the Tribunal finds that the applicant does not hold a current CoE, and does not hold an offer of a place in a registered course of study. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

20. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, 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.

    David Thompson
    Member