Gulati (Migration)

[2021] AATA 2263

Gulati (Migration) [2021] AATA 2263 (2 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dimple Gulati

CASE NUMBER:  1927834

HOME AFFAIRS REFERENCE(S):          BCC2019/4047339

MEMBER:Michael Biviano

DATE:2 June 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 2 June 2021 at 10:45 am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – evidence of current enrolment – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2 cls 500.111, 500.211, 500.212; r 1.03

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 17 September 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 15 August 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(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. The applicant was assisted in relation to the review by their registered migration agent.

5. On 1 February 2021 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about his entry and stay in Australia in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 15 February 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments (1 February Letter).

6. In their response, the review applicant filed a substantial amount of supporting documentation in support of the application including:

   a.Confirmation of Enrolment (COE) No AA1E6624 for the applicant to study an Advanced Diploma Management (Human Resources) from the Canberra Training School (CBT) from 25 May 2020 to 23 May 2021;

   b.COE No AA1E4647 for the applicant to study a Diploma Management (Human Resources) from the CBT from 29 May 2019 to 24 May 2020;

   c.Submissions prepared by the representative;

   d.COVID-19 statistics information; and

   e.Affidavit as to ties.

7. On 9 April 2021, the Tribunal invited the applicant to a hearing at the Tribunal to be conducted by way of telephone.

8. On 20 April 2021 and 21 April 2021, the applicant sought an adjournment of the hearing due to his father being involved in a serious motor vehicle accident, the applicant was in a distressed state. The Tribunal acceded to the request and the matter was relisted for hearing  on 24 May 2021 and on 6 May 2021 the applicant was invited to that hearing by an invitation in writing (Invitation).

9. On 19 May 2021, the Tribunal received an email from the applicant’s migration agent which stated as follows:

   We advise that we act for ;
   Mr Dimple GULATI in the matter of Case file number 1927834.

   Please find attached;

   1.    Final Submission.

   2.    Medical Certificate.

   3.    Death Certificate.

   4.    Education adviser notification.

   5.    Letter of Offer.

   We apologize for the late lodgement of the above , however we have had some difficulty receiving instructions from our client.

   We also respectfully request that the matter be decided on the papers as the applicant does not feel up to appearing in person and is attempting to finalize his last assessment task for his current course.

10. The email of 19 May 2021 enclosed the documents set out in the email including a letter of offer from Medicus College to study an Advanced Diploma Leadership and Management at Medicus College commencing on 13 June 2022 and concluding on 13 June 2023. The applicant did not provide a COE for the course. The email also enclosed an email from the applicant’s education agent dated 13 May 2021, claiming that the applicant is studying an Advanced Diploma of Management at the Canberra Training School, (which does not appear to be the case as he was completing an Advanced Diploma of Management (Human Resources) and seeking to study a Master of Marketing at the University of Canberra. The reply email from the University of Canberra confirmed that he was not a suitable candidate based on his profile.   

11. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

12. 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 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.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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 was a genuine applicant for entry and stay as a student, however the issue became whether the applicant was enrolled in a registered course of study.

    Enrolment (cl.500.211)

15. 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.

16. ‘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.

17. The applicant is a 31-year-old Indian national who came to Australia on 24 February 2014 pursuant to a Higher Education visa (Subclass 573). Since arriving in Australia, the applicant has resided in Australia on a further Student visa (Subclass 500) and Temporary Graduate (Subclass 485) visa.

18. The decision record of the delegate of the Department of Home Affairs dated 17 September 2019, which was provided to the Tribunal by the applicant, confirms that the applicant made the current application for a Student Class TU Subclass 500 visa on 15 August 2019 (Decision Record). 

19. At the time of the Decision Record, the applicant was enrolled to study the Diploma of Human Resources Management and Advanced Diploma of Management (Human Resources) at the Canberra Training School.

20. Prior to coming to Australia, the applicant had completed a Bachelor of Commerce in India.

21. While in Australia the applicant has completed the following studies:

    a.Bachelor of Accounting at Kent Institute;

    b.Diploma of Business at CBT;

    c.Diploma of Human Resources Management at CBT; and

    d.Advanced Diploma of Management (Human Resources) which studies were to conclude on 23 May 2021.

22. Based on the COEs provided to the Tribunal which were created on 29 May 2019, the applicant’s studies in the Advanced Diploma course should have concluded on 23 May 2021.

23. In the 1 February letter, the Tribunal requested that the applicant, pursuant to s.359(2) of the Act, provide information about the courses of study he was undertaking and about his entry and stay in Australia as a student in writing.  The Invitation stated:

    As you applied for the visas 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 will need to provide sufficient evidence to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student.

24. The applicant was placed on notice in the 1 February letter, that he needed to be enrolled in a registered course of study. The applicant filed documents in response to that invitation confirming that he continued to be enrolled Advanced Diploma of Management (Human Resources) but there was no mention he was enrolled in any other courses.

25. On 6 May 2021, the Tribunal sent the Invitation to attend the hearing in this matter.  The letter relevantly provides at page 2:

    In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:

    1.A copy of your current Confirmation 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.

26. The letter further stated:

    We may also assess whether you are enrolled in a registered course of study.  Please note that not being enrolled in a registered course of study may be a reason, or part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the delegate.

27. The  applicant was on notice that failure to be enrolled in a registered course was a ground upon which the decision under review may be affirmed.

28. The applicant at paragraph 10 of the Final Submissions submitted that the applicant had completed the course (being the Advanced Diploma) and that he was submitting his final assessment that week. Based on that submission, the applicant’s enrolment in the Advanced Diploma of Management (Human Resources) had ceased in accordance with the COE on 23 May 2021.

29. Further the Final Submissions confirmed that the applicant had sought to obtained enrolment in the Master of Marketing at the University of Canberra, which had been refused due to his visa status.

30. Importantly at paragraph 13 of the Final Submissions the applicant submitted:

    In order to maintain a current COE at all times and not knowing when his matter will be resolved the applicant has sought and gained a further Letter of Offer from MEDICUS COLLEGE in Canberra. We submit same for consideration.  

31. Paragraph 13 of the Final Submissions is illustrative as it confirms that the applicant is aware of the requirement to maintain a current COE but he has obtained a letter of offer from Medicus College, which is a one page document and is unsigned, for the applicant to study the Advanced Diploma of Leadership and Management from 13 June 2022 to 12 June 2023.  There is no evidence before this Tribunal or submission advanced that:

    a.The applicant signed the letter of offer from Medicus College and returned it to the College;

    b.The applicant paid the tuition fee for the course;

    c.The applicant was enrolled in the Advanced Diploma of Leadership of Management at Medicus College.

32. The applicant did not submit to the Tribunal with the Final Submission or at all a current COE for studies being undertaken after the completion of the Advanced Diploma of Management (Human Resources) on 23 May 2021.

33. The Tribunal has not received a COE or any supporting evidence confirming that the applicant is currently enrolled in a registered course of study, and based on the material and evidence submitted to the Tribunal by the applicant, it is not satisfied at the time of this decision that the applicant is enrolled in a course of study.

34. 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.

35. 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

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

    Michael Biviano
    Member