CHONG (Migration)

[2019] AATA 3197

CHONG (Migration) [2019] AATA 3197 (10 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr WILLIAM FUI CHONG

CASE NUMBER:  1718322

HOME AFFAIRS REFERENCE(S):          BCC2017/1104432

MEMBER:Mark Bishop

DATE:10 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 10 July 2019 at 2:39pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant failed to provide requested information– genuine temporary entrant criterion not met – not enrolled in any course of study– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212

CASES
Hasran v MIAC [2010] FCAFC 40

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 and Border Protection on 1 August 2017 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 21 March 2017. 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 the applicant appeared to be using the student visa program as a means of extending his stay in Australia and did not genuinely intend to stay in Australia temporarily as a full time student.

4. The applicant provided a copy of the decision record to the Tribunal. The decision record contained a copy of the applicant’s immigration, enrolment and education history. The decision record contained a copy of the applicant’s PRISMS record.

5. On 21 February 2019 the Tribunal formally wrote to the review applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal, including information in relation to enrolment.

6. The Tribunal advised the applicant a response should be provided by 7 March 2019 or request an extension of time in which to provide a response. The Tribunal advised the applicant in writing if it did not receive a response within the period allowed or as extended the Tribunal may make a decision on the review without taking any further action to obtain the information

7. The applicant did not provide a response within time and did not seek an extension of time.

8. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under section 359(2) of the Act. That invitation stated that it is a requirement of the student visa that the applicant is enrolled in a course of study and that the applicant is a genuine applicant for entry and stay as a student and requested information which goes towards both criteria. The invitation was sent to the review applicant’s nominated address, being the address provided by the review applicant in connection with this application for review.

9. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1).

10. The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

11. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

12. In these circumstances, the Tribunal has proceeded to make a decision having regard to the information before it, including the information previously provided by the applicant to the Department.

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

    Enrolment (cl.500.211)

14. 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. The issues in the present case are evidence of enrolment in a course of study and relevant GTE criteria.

15. 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.

16. The first primary criteria is contained in clause 500.211, which requires that at the time of decision the applicant is enrolled in a course of study:

    500.211One 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.

17. In his application for a student visa the applicant advised he held a Confirmation of Enrolments (COE) in a Diploma of Business Administration.  This COE number was 8BB8D331. The applicant advised the Department in his application for a student visa that he did not hold any other evidence of his intended study in Australia other than a COE (Df: 26). This COE was dated 31 March 2017.

18. On 21 February 2019 the Tribunal wrote to the applicant and advised it is a requirement of the visa for you to be “enrolled in a registered course of study and a genuine applicant for entry and stay as a student”. The Tribunal asked the applicant to provide “…information, in writing about the course(s) of study you are undertaking…”

19. On 21 February 2019 the Tribunal wrote to the applicant and advised “…not  being enrolled in a registered course of study may be a reason, or part of a reason, for the Tribunal affirming the decision under review , even if this is not the same criteria or issue considered by the primary decision maker”.

20. The applicant did not respond to this invitation to provide information to the Tribunal. The applicant did not provide any further corroborating evidence to the Tribunal relating to proof of enrolment in a course of study.

21. The applicant did not provide any evidence of course progress relating to enrolment in any courses of study from 2017 until the present time. The applicant did not provide any academic transcript that outlined any course progress in any courses of study from 2017 until the present time. The applicant did not provide any Statements of Attainment of units studied or completed in any courses of study from 2017 until the present time. The COE outlined in paragraph 17 above disclosed the applicant had not paid any tuition fees relating to enrolment in a Diploma of Business Administration. The applicant did not provide any receipts for payment of tuition fees relating to enrolment in a Diploma of Business Administration.

22. It is a relatively simple matter to provide a letter from his education provider that he is currently enrolled in a course of study as asserted in his s.359(2) statement to the Tribunal. The applicant has not provided any corroborating evidence of current enrolment in a course of study.

23. There is no additional information (excluding the information discussed above) relevant to the review application that was not provided to the Department before the Tribunal that postdates the delegate’s decision of 1 August 2017.

24. The Tribunal in reaching a decision in an application for review is required to be satisfied an applicant is enrolled in a course of study at the time of decision.

25. The Tribunal is disturbed by the failure of the applicant to provide current supporting information that addresses enrolment in a course of study. The Tribunal is disturbed by the failure of the applicant to provide a current COE, or letter from an education provider, or information that he is currently enrolled in a course of study. The Tribunal does not consider pieces of evidence in isolation. The Tribunal considers the totality of the evidence. In this context the Tribunal has given consideration to the dated COE on the Departmental file (see paragraph 17 above). The Tribunal is disturbed by the failure of the applicant to respond to a request for information made pursuant to s.359(2) of the Migration Act.

26. The Tribunal has carefully considered the delegate’s decision record dated 1 August 2017, a copy of which was provided to the Tribunal by the review applicant with the application for review.

27. Crucially however, the Tribunal does not have before it recent 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).

28. Accordingly the decision under review must be affirmed.

    DECISION

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

    Mark Bishop

    Member