Combariza Campos (Migration)

[2020] AATA 2703

Combariza Campos (Migration) [2020] AATA 2703 (8 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nicolas Combariza Campos
Ms Erlina

CASE NUMBER:  1731672

HOME AFFAIRS REFERENCE(S):          BCC2017/3578660

MEMBER:Michael Biviano

DATE:8 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 08 May 2020 at 12:59pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant is not currently enrolled in a course of study–genuine temporary entrant criterion not met –no evidence of current enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212

Education Services for Overseas Students Act 2000

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 12 December 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 29 September 2017.  At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas on the basis that the applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the reason that he was not a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily.

4. Further, the delegate found that as the applicant did not met the requirements of cl.500.212 of Schedule 2 to the Regulations, then the secondary applicant did not meet the requirements of cl.500.311 of Schedule 2 to the Regulations, and she did not meet the criteria for the grant of a student visa.

5. The applicants appeared before the Tribunal on 21 January 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages for the primary applicant and the Indonesian and English language for the secondary applicant.

6. The applicants were assisted in relation to the review by their registered migration agent.

7. It is appropriate to highlight that a decision maker is not required to make the applicants’ case. It is for the applicants 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 applicants, in as much detail as is necessary to enable the examiner to establish the relevant facts.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 issue in the present case was whether the applicant is a genuine applicant for entry and stay as a student. However the primary issue for determination changed and became whether the applicant was enrolled in a registered course of study as at the date of the decision.

   Enrolment (cl.500.211)

10. 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.

11. ‘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.

12. The applicant is a 29 year old Columbian student who first came to Australia on 25 September 2009.  He entered Australia after obtaining an initial student (Class TU Subclass 570) visa on 10 September 2009, which was valid until 22 July 2010. 

13. The decision record of the delegate of the Department of Immigration and Boarder Protection dated 12 December 2017, which was provided to the Tribunal by the applicant, confirms that the applicant made his application for the Student (Class TU Subclass 500) visa on 29 September 2017 (Decision Record). 

14. The Decision Record confirms that the applicant has resided in Australia since 25 September 2009 on the following visas:-

    (a)10 September 2009 to 22 July 2010 - Student visa subclass TU570 – Primary visa holder;

    (b)20 July 2010 to 18 May 2011 – Student visa subclass TU570 – Primary visa holder;

    (c)23 May 2011 to 12 September 2011 - Student visa subclass TU570 – Primary visa holder;

    (d)7 November 2011 to 15 March 2014 - Student visa subclass TU572 – Primary visa holder;

    (e)17 March 2014 to 15 March 2016 - Student visa subclass TU573 – Primary visa holder;

    (f)29 March 2016 to 16 April 2016 – Tourist visa subclass FA-600 - Primary visa holder; and

    (g)15 March 2016 to 30 September 2017 – Graduate Work visa subclass VC-485 – Secondary visa holder.

15. The Decision Record confirmed that at the time of making application for the Student (Class TU) Subclass 500 visa on 29 September 2017, he had enrolled to study a Bachelor of Business Information Systems which was to extend his stay until 15 March 2020.

16. On 8 October 2019, the applicant completed and filed with the Tribunal a response within time pursuant to an invitation to supply student information about the courses he was studying and information about his entry and stay in Australia in accordance with s.359(2) of the Act (Response). The applicant also submitted with the Response:-

    a.Confirmation of Enrolment Certificate (CoE) numbered 934FC295 for the applicant to study a Bachelor of Business Information Systems from the Australian Institute of Higher Education (AIH), which course start date was 4 December 2017 and course end date was 1 December 2019;

    b.Study Plan from AIH for the applicant; and

    c.Interim Academic Transcript from AIH dated 27 September 2019.

17. On 16 January 2020 and 20 January 2020, prior to the hearing, the applicant submitted further documentation in support of his application. The documentation included extensive Submissions dated 16 January 2020 in support of the application and enclosed an extensive number of documents including:-

    a.Certificate III in Information, Digital Media and Technology dated 4 July 2012;

    b.Certificate IV in Information Technology Support  dated 31 December 2013;

    c.Diploma of Information Technology Networking, dated 16 December 2013 from NSW TAFE; and

    d.An additional CoE number AFE68340 for the applicant to study the Bachelor of Business Information Systems at AIH from the course start date of 2 December 2019 and the  course end date was 2 March 2020.

18. The Response and the Decision Record confirm that applicant while in Australia undertook numerous studies including various English courses, and he studied and completed a Certificate III, IV and a Diploma of Information Technology from TAFE NSW which he completed in December 2013.

19. The applicant gave evidence that in 2014, he commenced studying a Bachelor of Information Technology at Australian Catholic University, but he struggled with the course and did not obtain the bachelor’s degree. He gave evidence that he struggled due to the increase in the standard of education from TAFE college to University.

20. The applicant gave evidence during 2016 and a significant part of 2017, he took time out from formal study while on a tourist visa and as a secondary applicant, on his partner’s graduate work visa. He spent time improving his language skills and undertaking private study to prepare him to study a Bachelor’s degree.

21. The Applicant enrolled in the Bachelor of Business Information Systems at AIH on 30 October 2017 and he gave evidence at the hearing that he had needed  to extend his course by a further 3 months and he had obtained the additional CoE extending the course for a further 3 months with a new end date of 2 March 2020. The course was to conclude 6 weeks from the hearing.

22. Since the hearing date, the end date for the Bachelor of Information Systems has passed which concluded on 2 March 2020.

23. The Tribunal obtained a copy of the applicant’s enrolment records from the Provider Registration International Student Management System Database (PRISMS records). The PRISMS Record confirmed that the applicant had finished the Bachelor of Information Systems Degree on 2 March 2020. In accordance with its obligations pursuant to s.359A of the Act, on 20 April 2020 the Tribunal sent a letter to the applicant enclosing a copy of the PRISMS records, explaining to the applicant what the PRISMS records are, the relevance of the records to the review and the consequences of it relying on the information contained in the records. The letter relevantly stated in relation to the issue of not being enrolled:-

    Further the information provides that you are not currently enrolled in a course of
    study. 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. Clause 500.211 relevantly requires that at the time
    the Tribunal makes decision the applicant is enrolled in a course of study:
    cl.500.211(a).

    The consequence of the Tribunal relying on this information is that the Tribunal may
    determine that you are not currently enrolled in a course of study and you may not
    meet this criterion under cl.500.211, and the decision of the delegate may be affirmed.
    You are invited to give comments on or respond to the above information in writing.

    The Tribunal invited the applicant to comment on or respond to the invitation or seek an extension of time in which to comment or respond on the information contained in the records by 4 May 2020

24. On 1 May 2020, the applicant by email made an application to extend the time within which to comment and respond to the invitation. The email stated omitting formalities:-

    We note that the deadline to respond to this request is 4 May 2020.

    Due to the complexity of your request and ongoing COVID-19 restrictions, we anticipate that we require at least two weeks to respond to this request. On this basis, we kindly request an extension of two weeks in order for the applicant to obtain the required documents and for us to prepare a well-written response to your invitation, given that such information would be the reason, or a part of the reason for affirming the decision under review.

    Thank you for your assistance in this matter.

25. On 4 May 2020, the Tribunal wrote to the applicant by email responding to application seeking an extension of time within which to respond to the invitation. The Tribunal refused the application on the basis that:-

    a.The matters raised were about the courses that the applicant had studied while in Australia set out within the PRISMS Record, which were matters that the applicant and his representative would have considered in preparing for hearing on 21 January 2020;

    b.The applicant had the opportunity over a period of 2 months since completing the bachelor’s degree to enrol in a new course of study;

    c.The period of time given to the applicant  to respond to the invitation being 2 weeks was reasonable.

26. On 4 May 2020, the applicant by his representative wrote to the Tribunal by email responding to the request for information and submitting further documentation in support of the application together with a submission (May Submission). The May Submission stated in relation to the issue of enrolment:-

    Issue 3 – Current Enrolment

    The invitation letter states that the applicant is not currently enrolled in a course of study. With respect, the Tribunal was aware of the fact that the review applicant was enrolled in three units at the time of the Tribunal hearing. The review applicant has now successfully completed his course. The review applicant is now waiting for the outcome of this review application. The review applicant has made arrangements to obtain copies of his completion letter and transcripts. We anticipate that the review applicant will obtain the documents by the end of this week.

    It is respectfully submitted that the Tribunal should not be persuaded that the visa programme is being used by the review applicant to circumvent the intentions of the migration programme. On this basis, the Tribunal should be satisfied that the review applicant intends genuinely to stay in Australia temporarily in accordance with cl.500.212 and that the appropriate course of action is to set aside the decision under review and make a fresh decision in substitution for the decision under review.

27. On 5 May 2020, after the deadline set to respond to the invitation the applicant submitted further documents to the Tribunal in response to the invitation. Those documents included:-

    a.A letter from AIH dated 5 May 2020, being a course completion letter confirming that the applicant and successfully completed the Bachelor’s degree on 23 February 2020 and the degree was conferred on 15 April 2020; and

    b.AIH academic transcript dated 15 April 2020.

28. The Tribunal has considered those further documents.

29. The Tribunal finds that based on the evidence submitted to it that the applicant completed the Bachelor of Business Information Systems at AIH on 23 February 2020 and he has not enrolled in a further course of study. The May Submission confirms that the applicant is awaiting the outcome of this review application before making any further decision. The applicant has not provided to the Tribunal a current CoE confirming that he has enrolled in a registered course of study since 2 March 2020.

30. In light of the evidence before it, the applicant is currently not enrolled in a registered course of study.

31. 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.

32. 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.

33. Further as the applicant has not met the requirements of cl.500.211 of Schedule 2 to the Regulations, then the secondary applicant does not meet the requirements of cl.500.311 of Schedule 2 to the Regulations, and she does not meet the criteria for the grant of a student visa.

    DECISION

34. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Michael Biviano
    Member