ENKHBAT (Migration)

[2020] AATA 3611

ENKHBAT (Migration) [2020] AATA 3611 (2 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Uuganbaatar ENKHBAT

CASE NUMBER:  1727037

HOME AFFAIRS REFERENCE(S):          BCC2017/2944032

MEMBER:Penelope Hunter

DATE:2 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 02 September 2020 at 4:06pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – not enrolled and no intention to study – intention to apply for partner sponsored visa – no basis for referral to minister – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359(2), 359A
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.111, 500.211(a), 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 Immigration and Border Protection on 20 October 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 16 August 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 visas 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 delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia temporarily as a student.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant is a citizen of Mongolia. He applied for the visa in order to undertake study in an Advanced Diploma of Travel and Tourism Management until 30 October 2019.

6. The Tribunal received an application for review from the applicant on 13 November 2017.

7. On 9 May 2019, the Tribunal wrote to the applicant a letter pursuant to s. 359(2) of the Act which contained the following information:

   As you applied for the visa on the basis of undertaking a course of study in Australia, 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.

   Accordingly, you are now invited to give, in writing, information about the course(s) of
   study you are undertaking and your entry and stay in Australia as a student. Specific
   details about the information requested is set out in the Request for Student Visa
   Information form which you can access by clicking on the link below.

8. The applicant was also provided with information as to how to access a printable copy of the form if he wished to return a hard copy. The letter also advised that in considering whether the applicant was a genuine applicant for entrant and stay as a student the Tribunal must have regard to Ministerial Direction No.69, and attached a copy.

9. On 5 June 2019, the application provided a response and submitted a completed “MRD Student Visa Information Form”, addressing the genuine temporary entrant criteria. He set out that he did not complete the Advanced Diploma of Travel and Tourism Management. He had obtained a new enrolment in a course that commenced on 23 May 2019, identified as an Advanced Diploma of Travel and Tourism Management.

10. The applicant was subsequently invited to appear before the Tribunal on 13 October 2019  to give evidence and present arguments. The applicant was assisted in relation to the review by their registered migration agent, who the hearing. The hearing also took place with the assistance of an interpreter in the Mongolian and English languages. At the hearing the applicant provided evidence as to matters pertaining to the genuine temporary entrant criteria. The applicant gave evidence that he was enrolled and continuing with his Advanced Diploma of Travel and Tourism Management. He further gave evidence that he did not complete his previous course because he did not like the teacher and as he was living far from the city it was difficult for him to attend every class.

11. The initial member allocated the application for review was unable to finalise the mater and the application for review was reconstituted on 13 July 2020 to a different member. On 20 July 2020, the applicant was again invited to attend a hearing before the Tribunal on 20 August 2020 to give evidence and present arguments. The hearing invitation among other things requested that the applicant:

    · Provide a copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.

    The hearing invitation also advised the applicant that the Tribunal may assesses whether he was a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). It may also assess whether he was enrolled in a register course of study. Further, the applicant was advised that 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 delegate.

12. On 27 July 2020, the Tribunal received a Response to Hearing form signed by the applicant, indicating that he would attend the hearing and that his representative would not be in attendance.

13. On 6 August 2020, the Tribunal wrote to the applicant pursuant to the provisions of s.359A of the Act and informed the applicant that Information via a Provider Registration and International Student Management System (PRISMS) records search indicated that he was not currently enrolled in a registered course of study and that his enrolment in the Advanced Diploma of Travel and Tourism Management with course dates from course of English for General Purposes with course dates from 23 May 2019 to 11 June 2021 had been cancelled. The applicant was informed that the information was relevant as if the Tribunal relied upon it may find that the applicant did not meet cl. 500.211 of Schedule 2 to the Regulations. The applicant was further informed that he may then not be entitled to be granted the student visa for which he had applied. The applicant was invited to comment or respond by 29 August 2020.

14. The applicant appeared before the Tribunal on 20 August 2020 to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The representative of the applicant also attended the hearing by telephone. The hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.

15. Prior to the commencement of the hearing the applicant had requested that the hearing officer contact his representative to appear. The Tribunal attempted to contact the applicant’s representative prior to the hearing and were advised that he was no longer at the firm and that no arrangements had been made with the applicant for an alternative agent to act in the matter. At the commencement of the hearing it was confirmed with the applicant that he had signed the Hearing Response form identifying that his agent would not be attending. The applicant confirmed that he was aware that his agent was not appearing but not that he had left the firm. He had not had contact with him in some time. The applicant said that he wished to make an application for the Tribunal to refer the matter to the Minister for consideration and had wished to speak to his agent about it. After discussions with the applicant he confirmed that he consented to proceed with the hearing and the Tribunal would allow him further time, until 28 August 2020 to obtain additional advice or make further submission.

16. The applicant confirmed in his evidence at the hearing that he was not enrolled in a course of study. He also told the Tribunal that he did not intend to study. He said that he had an Australian partner and wanted to seek a partner sponsored visa. He asked that the Tribunal refer the matter for consideration to the Minister to allow him to apply for a partner visa onshore.

17. 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 for the delegate was whether the applicant met the criterion in cl.500.212, however as identified to the applicant, another matter before the Tribunal is whether he meets cl. 500.211.

18. 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.

19. ‘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.

20. As the applicant was informed in writing, his PRISMS records document that his last enrolment in the Advanced Diploma of Travel and Tourism Management was cancelled. The applicant has conceded that he is not currently enrolled, the that he does not intend to undertake further study in Australia. No further documents or submissions have been received from the applicant following the hearing in relation to the application or enrolment. 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.

21. 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.

    Referral for Ministerial Intervention – Is this an appropriate case for consideration

22. The Tribunal has also considered whether the circumstances the applicant and second named applicant have put forward would warrant referral to the Minister under section 351 of the Act.  This section provides that the Minister can only intervene and substitute a decision that is more favourable to the applicant once the Tribunal has made an unfavourable decision.

23. The Tribunal takes the issue of recommending the referral of any matter to the Minister seriously. It also notes that the theme running through the relevant Ministerial guidelines on this matter is that there will always be unusual or exceptional circumstances where intervention by the Minister to grant a visa is warranted, as this would align with Australian community expectations.

24. The applicant conceded at hearing that he no longer wanted a temporary student visa. Instead he wished for the Tribunal to refer the matter to the Minister to allow him to apply onshore on a bridging visa for a partner visa. The applicant submitted to the Tribunal that he had an Australian partner who was prepared to sponsor him for a partner visa. At the hearing on 20 August 2020, the applicant claimed to have been in the relationship for 18 months, yet at the hearing on 13 September 2019, he had given evidence that he was single. Other than the applicant’s oral evidence on 20 August 2020, no further submissions were received and there is no other evidence of the relationship or the impact on his claimed Australian partner. The applicant told the Tribunal on 20 August 2020, that he could make an economic contribution to Australia through his employment, yet he claimed not to have a fixed job and occasionally worked part-time in construction. The Tribunal was not satisfied on the evidence presented that there was an exceptional economic benefit to be gained by the applicant being permitted to remain in Australia. The applicant accepted that he did not have any fears or concerns about returning to Mongolia. He told the Tribunal that due to COVID-19 travel restrictions he was unsure how to make return travel arrangements, and this, and his desire not to be separated from his partner, were obstacles he identified to the possibility of making a partner visa application offshore.

25. There is no evidence that there was any exceptional scientific, cultural or other benefit that would result from the applicant being permitted to remain in Australia. There is also no medical evidence of matters relating to the applicant’s age, health or psychological state that should be recognised by the Tribunal. The applicant confirmed that he did not have any dependants in Australia, he was not married to his partner, although he did make an economic contribution to their household.

26. Overall, there was insufficient information to persuade the Tribunal that the application should be referred. Accordingly, on the basis of the evidence that has been submitted to it, and for the reasons set out in this decision record, the Tribunal has decided not to refer the matter to the Minister under section 351 of the Act.

27. Nevertheless, the Tribunal notes that the applicant can still make a request directly to the Minister under section 351 of the Act.

    DECISION

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

    Penelope Hunter
    Member