Generoso (Migration)

[2020] AATA 2083

Generoso (Migration) [2020] AATA 2083 (28 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Generose Generoso
Miss Sophia Gabrielle Generoso

CASE NUMBER:  1719017

HOME AFFAIRS REFERENCE(S):          BCC2017/1027947

MEMBER:Michael Bradford

DATE:28 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 28 February 2020 at 2:57pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – no current enrolment – applicant completed course – no details of further enrolment – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 cls 500.211, 500.212, 500.312

STATEMENT OF DECISION AND REASONS

Background, procedural and evidentiary aspects

1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Border Protection on 4 August 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 15 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The main 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 main applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she did not genuinely intend to stay temporarily in Australia. As the main applicant was found not to meet the requirements of that clause, the delegate also found that the dependant applicant did not satisfy the requirements of cl.500.311 of the Regulations.

4. The Review Application was filed on 23 August 2017 and is within time.

5. On 25 February 2019 a Sec 359(2) letter was sent to the applicants.

6. On 11 March 2019 they submitted a request for an extension of time in which to respond to that letter and on 12 March 2019 the Tribunal granted that request and extended the time to 15 March 2019.

7. On 15 March 2019 the applicants responded to the Sec 359(2) letter by completing the Online Response Form and returning it to the Tribunal together with the other documents listed in the Form. Among these documents was a letter from the Linx Institute dated 27 February 2019 confirming that the main applicant was then enrolled at that Institute in a Diploma of Community Services.

8. On 2 April 2019 the Tribunal sent a letter to the applicants inviting them to appear at a hearing scheduled for 26 April 2019 and in due course that invitation was accepted.

9. On 18 April 2019 the Tribunal obtained a PRISMS record and Movements Details in relation to the main applicant the relevant content of which was discussed with her at the hearing and was not controversial.

10. On 26 April 2019 the applicants attended the hearing to give evidence and present arguments in support of their review case.  A registered migration agent, a Ms Corazon Jasa, also attended the hearing to assist them. An interpreter was not required the main applicant giving her evidence in English without apparent difficulty.

11. The PRISMS record indicated, among other things, that the Diploma in which the applicant had enrolled at Linx was due to be completed on 21 April 2019, that is to say a few days prior to the hearing.

12. At the hearing the main applicant gave oral evidence to the effect that she had in fact recently completed that course but that she wished to enrol in another course, which she identified.

13. At the conclusion of the hearing, the applicants sought the opportunity to provide further documents to establish that she was enrolled in this other course. The Tribunal acceded to this request and made a direction to the effect that the main applicants was to provide a copy of a Confirmation of Enrolment (COE) in relation to this other course by close of business on 10 May 2019.

14. On 10 May 2019 the applicants’ agent sent an email to the Tribunal indicating that the main applicant’s enrolment in this other course was “in progress” and that the COE would be provided as soon as the agent received it. Attached to this email was a copy of correspondence passing between the proposed education provider, TAFE NSW, and an enrolment agent, BB Enrolments Australia, which referred to a provisional offer from TAFE for a course which the correspondence does not identify.

15. On 13 May 2019 the Tribunal sent a further letter to the applicants requesting that a copy of the COE for the TAFE course was to be provided to the Tribunal by 27 May 2019 failing which the Tribunal would make a decision on the review without taking any further action to obtain the information.

16. No further documents were received from the applicants prior to that date.

17. On 17 September 2019 the Tribunal sent another letter to the applicants inviting them to appear at a further hearing scheduled for 24 October 2019 at 9.30 am. It is requested in this letter that the applicants should at least 7 days prior to the hearing provide to the Tribunal a copy of a current COE, among other documents.

18. On 21 October 2019 the applicants’ agent sent an email to the Tribunal stating that the main applicant did not wish to attend the further hearing. No further documents were provided.

19. On 22 October 2019 the Tribunal obtained an up-dated PRISMS record which confirms that the Diploma of Community Services finished on 21 April 2019 and that the applicant has not been enrolled in any other registered course of study since that date.

    The issue now arising on the review application and the Tribunal’s approach to this issue

20. For the reasons which follow, the only issue which the Tribunal need now determine on this application relates to the main applicant’s current enrolment status.

21. The Tribunal notes that a decision on this application in relation to that issue has to be made on the information currently available to the Tribunal and that where a main applicant such as this one has been requested to provide a document in the form of a COE, or other documents or information, to establish that she is in fact currently enrolled in a registered course of study and does not do so, the Tribunal is under no obligation to make any further enquiries or to conduct any further investigations in relation to that issue.

22. Moreover, in this case, the main applicant has been given ample opportunity to provide these documents and information, including (at her request) an adjournment of the initial hearing for that very purpose.

23. In an application of this kind an applicant must demonstrate to the Tribunal that the criteria in clauses 500.211 to 500.218 of the Regulations are met. Among them is the requirement in clause 500.211(a) that, in this case, the main applicant be enrolled in a registered course of study at the time of this decision.

24. As is well known, enrolment in a registered course of study at the time of this decision, as that phrase is defined in the Regulations, is a mandatory requirement for the grant of a Student (Class TU) (Subclass 500) visa.

25. As noted earlier PRISMS confirms that the Diploma of Community Services at Linx was completed on 21 April 2019 and the applicants have not provided to the Tribunal any further COE or other documents by which to establish that the main applicant is, at the time of this decision, enrolled in another registered course of study. Plainly, the email train which is attached to the agent’s email of 10 May 2019 does not establish that the main applicant is so enrolled there being no evidence to establish that the conditional offer from TAFE has been accepted by the main applicant and that the conditions specified in the offer have been met. The Tribunal notes that the agent has made no assertion to the contrary in her email.

26. In this case the Tribunal has no reason not to act on the information in the updated PRISMS record in circumstances where she was invited to attend a further hearing and declined to do so.

27. This being so, it is unnecessary for the Tribunal to decide on this review whether the main applicant meets the other mandatory criteria in Part 500, including the question of whether she is a genuine temporary entrant within the meaning of clause 500.212.

    Conclusion on the enrolment issue

28. The Tribunal must find on this application that the main applicant does not meet the criterion in clause 500.211 of the Regulations in that she is not currently enrolled in a registered course of study and, consequently, that she is not entitled on that ground alone to a Subclass 500 visa.

29. As the Tribunal has found that the main applicant does not satisfy the primary criteria in clause 500.211 the dependent applicant is unable to meet the secondary criteria in clause 500.312 because she is not a member of a family unit at least partly constituted of a person who satisfies the primary criteria in clause 500.211.

30. Accordingly the delegate’s decisions to refuse to grant to the applicants Student (Temporary) (Class TU) visas must be affirmed.

    DECISION

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

    Michael Bradford
    Member