Gill (Migration)

[2022] AATA 1113

Gill (Migration) [2022] AATA 1113 (22 March 2022)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lovejeet Singh Gill

REPRESENTATIVE:  Mr Harpal Singh Bajwa (MARN: 0955800)

CASE NUMBER:  2200025

HOME AFFAIRS REFERENCE(S):          BCC2021/1692908

MEMBER:Mark Bishop

DATE OF DECISION:  22 March 2022

DATE CORRIGENDUM

SIGNED:29 April 2022

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

·            In paragraph 31, the word ‘not’ is deleted.

·            In paragraph 32 the second and third sentences are deleted and replaced with: “Accordingly, the decision under review must be set aside”.

Mark Bishop
Member

.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lovejeet Singh Gill

REPRESENTATIVE:  Mr Harpal Singh Bajwa (MARN: 0955800)

CASE NUMBER:  2200025

HOME AFFAIRS REFERENCE(S):          BCC2021/1692908

MEMBER:Mark Bishop

DATE:22 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

• cl 500.211 of Schedule 2 to the Regulations.

Statement made on 22 March 2022 at 4:47pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a course of study – request for hearing adjournment – confirmation of enrolment provided after hearing – decision under review remitted           

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2 cls 500.111, 500.211; r 1.03

CASES

MIAC v Li (2013) 249 CLR 332

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 14 December 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 August 2021. 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.500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant despite repeated request failed to provide proof of enrolment in a course of study.

4. On 5 January 2022 the Tribunal wrote to the applicant and requested he provide “A copy of a current Certificate of Enrolment (CoE) as required for the grant of a student visa”. The applicant did not comply with this request.

5. On 4 March 2022 the Tribunal wrote to the review applicant. advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 22 March 2022. The Tribunal advised the applicant the hearing would be contacted by mobile phone. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. On 18 March 2022 the Tribunal sent system generated SMS reminder notices to the applicant’s phone number.

6. The applicant appeared before the Tribunal on 22 March 2022. The applicant was assisted in his review by his Migration Agent (MA).

7. The applicant provided a copy of the decision record to the Tribunal. The applicant was assisted in relation to the review.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 is enrolment in a course of study.

   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 reg 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 (Cth), to provide the course to overseas students.

12. In his Application for a Student visa dated 30 August 2021 the applicant declared he held a “letter of offer” in a Diploma of Leadership & Management”. He did not declare he held a current COE or other form of proof of enrolment. He provided a copy of the letter of offer to the Department. The letter of offer stated “This is a CONDITIONAL letter of offer until you achieve the required overall mark on your Determining Suitability Assessment” and “To confirm your acceptance of this offer, complete and return the attached Acceptance and Agreement Form, along with payments due as outlined. Once your initial payment has been received, we will issue you with an electronic Confirmation of Enrolment (eCoE)”. There is no evidence the applicant accepted this letter of offer. There is no evidence the applicant paid any portion of the course fees. There is no evidence before the Tribunal the education provider issued an eCoE. The Tribunal notes a letter of offer is not a COE or a form of proof of enrolment. The Tribunal gives the letter of offer no weight.

13. On 14 December 2021 the delegate made a finding as follows:

    ·“There is no evidence the applicant is currently enrolled in a registered course of study provided by a registered provider.

    ·The applicant has not provided a COE and no evidence can be found of any enrolment in an acceptable course of study on our database and the Provider Registration and International Student Management System (PRISMS).

    ·As the applicant has not provided evidence of enrolment in an acceptable course of study, he does not satisfy clause 500.211 and therefore does not meet the requirement for the grant of a Student visa.

    ·I am not satisfied the applicant meets Migration Regulation 500.211.”

14. On 5 January 2022 the Tribunal wrote to the applicant and requested he provide proof of current enrolment in a course of study by 19 January 2022. The MA for the applicant requested an extension of time to provide the relevant proof. Prior to the hearing the applicant did not provide a current COE or otherwise proof of current enrolment in a course of study.

15. On 4 March 2022 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 22 March 2022. The Tribunal advised the applicant the hearing would be contacted by mobile phone. The applicant responded to this invitation on 4 March 2022 and advise he would attend the review hearing as scheduled. He advised documents would be sent in the relevant time frame.

16. On 14 March 2022 the MA for the applicant wrote to the Tribunal in the following terms “I would like to update you that I am trying to contact the applicant but he is not getting back to me… as he is not responding back to me. I have whatsapped him as well, clearly messages are showing double tick (delivered|) and calls are going but he is not picking and neither responding to my text messages. I am not sure if I can do any further to get an update from this client…”

    Request for Adjournment

17. On 16 March 2022 the MA for the applicant wrote to the Tribunal in the following terms “I have been contacted by the applicant today and was informed that he lost his phone due to which he couldn't communicate and he urgently needs a request to postpone the hearing due to his medical issues. Please convey his request to the honourable member as the hearing is scheduled for next week and applicant doesn't have any documents prepared yet for the scheduled hearing”.

18. The Tribunal gave consideration to this request for an adjournment.

19. On 2 August 2018 the President of the Administrative Appeals Tribunal brought down a Practice Direction relating to the conduct of reviews under Migration and Refugee Division. Clause 7 of the Practice Direction dealing with Migration and refugee Matters provides as follows:

    Seeking an adjournment

    7.3 If you seek an adjournment of a scheduled hearing, you must contact us immediately and state the reasons why the date is unsuitable.

    7.4 If you seek an adjournment of the hearing on medical grounds, you must contact us as soon as possible and must provide a certificate from a medical practitioner certifying that you are unable to attend and give oral evidence, and indicating when the medical practitioner considers you will be able to attend a hearing and give oral evidence. If you are a representative acting on behalf of an applicant, you must submit such medical certificates no later than two business days before the scheduled hearing day (where available).

20. The medical certificate provided to the Tribunal was not consistent with this requirement set out in cl.7.4 as set out immediately above. Nonetheless the Tribunal does not reject the request for an adjournment based on this technical conclusion..

21. The High Court of Australia (HCA) in MIAC v Li (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner, which is reasonable and has regard to the statutory purposes of s.360. In considering reasonableness, the Court considered the Tribunal’s statutory purpose to conduct a conduct its review in a manner which ‘is fair, just, economical, informal and quick’.

22. The medical certificate advised “Mr Lovejeet Singh Gill has a medical condition and will be unfit for work from 16/03/2022 to 22/03/2022 inclusive”.

23. The medical certificate did not state the applicant was unable to attend a brief phone hearing. The medical certificate did not state the applicant should not or could not participate in a brief phone hearing. The medical opinion did not in any detail outline the nature of the applicant’s complications. The medical opinion did not outline detail relating to a course of action. The medical opinion did not provide a prognosis.

24. The Tribunal refused the application for an adjournment.

25. The applicant attended the review hearing and did not make further reference to his prior request for an adjournment.

26. On 21 March 200 the MA for the applicant wrote to the Tribunal in the following terms “Despite my repeated requests, applicant failed to see me or provide any documents for tomorrow's hearing, hence I would not be able to represent him for scheduled hearing tomorrow. I am not even sure if he is attending the hearing tomorrow, hence I am not able to tick anything in the form confirming his attendance for tomorrow…”

27. As early as 21 August 2021 the applicant was aware he was required to provide evidence of proof of enrolment in a course of study (for detail see paragraph 12 above) The Tribunal and Department have requested the applicant provide proof of current enrolment on many occasions. These requests have been made orally and in writing. Prior to the hearing the applicant did not provide to the Tribunal any evidence as to current enrolment in a course of study.  The MA for the applicant repeatedly advised the Tribunal the applicant had not provided him with relevant documentation as to proof of enrolment in course of study (see paragraphs 16 and 26 above). The applicant has had since August 2021 (date of Application for Student visa) or December 2021 (date of delegate’s decision) to enrol in a course of study and provide proof of current enrolment to the Tribunal.

28. In response to questions from the Tribunal the applicant advised initially he had a letter of offer. The Tribunal explained a letter of offer was not proof of enrolment in a course of study. The applicant then amended his answer and advised he did have proof of enrolment in a course of study and his MA had not provided it to the Tribunal. The Tribunal remined the applicant of the correspondence from his MA dated 21 March 2022 (day before the scheduled hearing). See paragraph 26 above. The Tribunal advised the applicant he had until 4pm on the day of the hearing to provide proof of enrolment in a course of study. The applicant advised the Tribunal he would provide the information as requested in the time frame.

29. At 4.16pm on 22 March 2022 the applicant provided a copy of a current COE to the Tribunal. The COE was created at 4.04pm 22 March 2022 in a Diploma of Leadership and Management in the name of the applicant and expires on 12 April 2023.

30. There is evidence before the Tribunal that the applicant is currently enrolled in a course of study.

31. Therefore, the Tribunal is 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 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

33. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl 500.211 of Schedule 2 to the Regulations.

    Mark Bishop

    Member