Gorrila (Migration)

[2021] AATA 2525

Gorrila (Migration) [2021] AATA 2525 (8 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alban Gorrila

CASE NUMBER:  1916095

HOME AFFAIRS REFERENCE(S):         BCC2019/1314054

MEMBER:D Triaca

DATE:8 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 08 July 2021 at 10:08am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – consent to decision without hearing – no evidence of current enrolment provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211(a), 500.212

CASE
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 Home Affairs on 11 June 2019 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 14 March 2019. 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 was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate‘s decision was provided to the tribunal with the applicants review application.

4. The Tribunal formally wrote to the applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal on 21 January 2021. The invitation advised that, if the information was not provided in writing by the prescribed period, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. 

5. The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the applicant‘s nominated address, being the address provided by the review applicants in connection with this application for review.

6. The applicant sought, and was granted an extension of time and responded to the tribunal in writing on 15 February 2021. A Hearing was scheduled for 30 March 2021. On 26 March 2021 the applicant’s representative wrote to the tribunal and indicated that the applicant no longer wished to appear at the hearing as scheduled and wished the tribunal to proceed and make a decision on the papers. Accordingly, the scheduled hearing was cancelled. In these circumstances, the 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.

7. 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 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.

8. In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department as well as information that may be discerned from the delegate’s decision itself. A copy of the delegate’s decision was provided to the Tribunal with the review application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

    Enrolment (cl.500.211)

11. 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.

12. ‘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.

13. Producing evidence of a current enrolment is a critical first step towards obtaining a student Visa such evidence shows that the applicant has prior to the tribunal making its decision entered into a legally binding contract with a registered course provider. Enrolment continues to be of legal significance once a student Visa is issued. All student visas are subject to a condition that the Visa holder remains enrolled in a registered course of study. That condition operates on a continuing basis every day the Visa remains valid. If a student Visa is issued to an applicant who is not enrolled in a course of study, the Visa will be breached as soon as it is granted.

14. The Tribunal must therefore be presented with evidence that shows the applicant is currently enrolled in a registered course of study. Absent such evidence, a student visa cannot sensibly be granted. Indeed, in any case for a student visa, consideration of whether all other primary criteria are met, as contained in cos 500.212 to 500.218 is premised on the enrolment criterion in clause 500.211 first being satisfied. If cl 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.

15. In this case, the Tribunal cannot be satisfied that the applicant is currently enrolled in a registered course of study. The applicant lodged his application for a student visa on 14 March 2019, proposing to study a Certificate IV in Business Management, extending his stay until June 2020. In his 359 Response, he stated that he completed that course at Jabin Hopkins Institute of Technology and was ‘studying now’ a Diploma of Business at that institution. On 29 March 2021 the applicant provided the tribunal with a copy of his Certificate of Enrolment in a Diploma of Business at Jabin Hopkins Institute of Technology commencing on 25 May 2020 and due to be completed on 23 May 2021. This time has long since passed. There is no evidence before the tribunal to suggest the applicant intended to undertake further study beyond the completion of this Diploma. Accordingly, as at the date of this decision, the applicant has had sufficient time to complete the proposed course of study and there is no evidence to suggest that he is engaged in further studies. 

16. The Tribunal does not consider it appropriate to engage in speculation in relation to whether the applicant has engaged in further study beyond the Certificate of Enrolment that he provided in support of the application. For the purposes of determining whether the criteria contained in clause 500.211 are satisfied, cogent evidence of a current enrolment must be presented to the tribunal before it can make a finding that the applicant is currently enrolled in a registered course of study. There is presently no such evidence before the tribunal.

17. 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.

18. 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.

    DECISION

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

    DTriaca
    Member