Hidup (Migration)

[2020] AATA 942

Hidup (Migration) [2020] AATA 942 (1 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mas Untung Hidup

CASE NUMBER:  1811254

HOME AFFAIRS REFERENCE(S):          BCC2017/4843960

MEMBER:T. Quinn

DATE:1 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 01 April 2020 at 7:26pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no response to s359(2) invitation – not entitled to appear before the Tribunal – indefinite adjournment not necessary – enrolment status – not enrolled in a registered course of study – postponement of determination not appropriate – decision under review affirmed

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

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2001] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 (‘the delegate’) on 3 April 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant (‘the applicant’) applied for the visa on 18 December 2017 (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 3 April 2018, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that 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 applicant’s review application.

4. On 24 October 2017, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. The applicant was assisted in relation to the review.

6. Nearly two years have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 15 November 2019, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’).[1] 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 the prescribed date, being 29 November 2019, 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 applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act.

   [1]The Tribunal notes that this letter was initially sent on 30 October 2019 but it was identified that there had been a systems outage meaning the smart form response method was not available from 5.20pm until midnight on the last day of the prescribed period for responding to that letter and as such, a new letter was sent to ensure the applicant was given the full two week prescribed period to respond.

7. The Tribunal received submissions on 3 December 2019. The requirement was that the information requested be ‘received by 29 November 2019’. The review applicant did not provide the information within the prescribed period and no extension of time was requested prior to the expiration of the prescribed period. Where a review applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action.[2] 

   [2] Pursuant to section 359C(1) of the Act.

8. The Tribunal finds that the review applicant did not provide further information within the prescribed period as requested. In these circumstances, section 359C of the Act applies and pursuant to section 360(3) of the Act the review applicant is not entitled to appear before the Tribunal. 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 him or his to appear.[3]

   [3]           Hasran v MIAC [2010] FCAFC 40.

9. The Tribunal has considered whether, in the circumstances of this case, information that the applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide relevant information already.

10. The Tribunal has given consideration to whether it should adjourn the review under section 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs[4] and Manna v Minister for Immigration and Citizenship[5] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.  It has also had regard to Minister for Immigration and Citizenship v Li[6] regarding reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[7] which considered analogous issues, as well as the decision of Kaur v Minister for Immigration and Border Protection.[8]

    [4]         [2002] FCA 617.

    [5]         [2001] FMCA 28.

    [6]         [2013] HCA 18 (8 May 2013).

    [7] [2014] FCAFC 1 (4 February 2014).

    [8] [2014] FCA 915 (28 August 2014).

11. In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the applicant has had a fair opportunity to provide relevant information.

12. Accordingly, the Tribunal has elected not to exercise its discretion under section 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the applicant to the Department and their submissions of 3 December 2019.

13. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

14. For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed in this case.  In reaching its decision, the Tribunal has had regard to:

    a.all written material filed by or on behalf of the applicant; and

    b.other relevant documents on the Tribunal and Department files.

    The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be fundamental or materially significant to the determination of the issues in the case.

    STATUTORY FRAMEWORK

15. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 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.

16. While the determinative issue before the delegate was whether the applicant met the genuine temporary entrant criteria under clause 500.212 of the Regulations, the applicant’s response to the s359(2) letter made it clear that the applicant does not meet other criteria that must be satisfied for the grant of a student visa.

    Enrolment (clause 500.211)

17. Clause 500.211 relevantly requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.[9] The applicant does not claim to meet any of the alternative criteria in clause 500.211 of the Regulations.

    [9]Clause 500.211(a) of Schedule 2 to the Regulations.

18. ‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has  been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[10]

    [10]Regulation 1.03 of the Regulations.

19. All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[11]  Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[12] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.

    [11]Section 10 of the ESOS Act.

    [12]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).

    Significance of Enrolment Criterion

20. Producing evidence of 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.  That contract gives rise to several significant obligations.  First, it obliges the course provider to provide the applicant with a pre-determined course of education or training over a specified period.  Second, it obliges the applicant to pay for the course.  Third, it obliges the applicant to complete the course requirements to receive a testament from the course provider as to what the applicant has achieved by way of formal qualification.  An enrolment therefore represents a present and operating commitment by the applicant to complete a course of study.  It is persuasive evidence of a tangible and immediate need for a student visa.

21. An 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.[13]  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.

    [13]Schedule 5 to the Regulations.

22. 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 grated. Indeed, in any case for a student visa, consideration of whether all other primary criteria are met, as contained in clauses 500.211-500.218 of the Regulations, is premised on the enrolment criterion in clause 500.211 first being satisfied. If clause 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The applicant is a 49 year old male Indonesian citizen who first arrived in Australia on 24 June 2011 on a student visa.[14] The applicant’s response to the s359(2) letter indicates that he is not currently enrolled in a registered course of study. The Tribunal does not have any evidence before it that the applicant is currently enrolled in a registered course of study as required by the Act and Regulations.

    [14] See delegate’s decision and applicant’s response to the s359(2) letter.

24. The delegate’s decision in relation to the applicant’s application to the Department which is the subject of this review stated that the applicant’s application was to undertake a Certificate III in Accounts Administration and a Certificate IV, Diploma and Advanced Diploma in Accounting.  The delegate stated that at the time of their decision the applicant was enrolled in these courses with a proposed completion date of 8 March 2021.

25. The s359(2) letter dated 15 November 2019, importantly, stated ‘[a]s 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.’

26. The questionnaire to be completed pursuant to the s359(2) letter (‘the questionnaire’) makes several requests for information relating to the enrolment condition contained in clause 500.211 of the Regulations. In the section of the questionnaire making these enquiries, the document also states “[n]ot being enrolled in a registered course of study may be a reason, or a 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 primary decision maker.” Here, the questionnaire specifically asks the following question: ‘Does the Main Applicant have a current Confirmation of Enrolment (C oE) in a registered course of study?’ The applicant responded ‘no’ to this question, indicating he is not currently enrolled in a registered course of study. The Tribunal also notes that the applicant has answered other similar questions throughout the questionnaire in a consistent manner (indicating he is not currently enrolled).

27. In the section of the questionnaire requesting information in relation to all enrolments which specifically states that this includes: cancelled enrolments; courses successfully completed; and current or future enrolments (emphasis added), the applicant did not list any current or future enrolments.  He did list the four abovementioned courses with their respective commencement and completion dates (culminating in a completion date of January 2021 for the Advanced Diploma), however, he has listed the status of each of these enrolments as ‘did not complete’.  It appears that the applicant has not commenced any of these courses and allowed his enrolment to lapse. He has not listed any other current or future enrolments.  There is no current confirmation of enrolment for these or any other course(s) presently before the Tribunal.

28. In the part of the questionnaire asking whether the applicant has ‘been enrolled in a registered course at all times while in Australia as the holder of a student visa’ the applicant stated that he has not been enrolled from January 2019 to January 2021 and has not provided any explanation for this.

29. The s359(2) letter invited the applicant to include any additional supporting documentation with the applicant’s responses to the questions posed in the questionnaire. The applicant did not include any confirmation of enrolment as additional material. There is therefore no current COE before the Tribunal, or any other documentation, showing that the applicant is currently enrolled in a registered course of study. On the answers given in the applicant’s response to the s359(2) letter, it appears the applicant has allowed their enrolments to lapse. The applicant has made no suggestion that they obtained a formal deferral of the starting date of the course(s) from the course provider. There is no evidence that the applicant has obtained a new COE for a registered course. On the contrary, the applicant’s own evidence is he ceased to maintain his enrolment in January 2019, over one year ago, and has no current enrolment. It appears the applicant has been doing no study in Australia for the last fifteen months.

30. The Tribunal has considered the possibility that the applicant may have been under a misunderstanding as to how the Regulations operate in relation to the granting of student visas and may have mistakenly believed that they could be granted a visa by the Tribunal before taking steps to enrol in a registered course of study. If this mistake has in fact been made, it does not obviate the strict requirements of the Regulations. Evidence of a current enrolment must be produced first. The law is clear. Without an enrolment, there can be no student visa.

    Not Appropriate for Tribunal to Postpose Determination

31. The Tribunal has considered whether postponing the determination of the present application for review is appropriate and whether it ought write to the applicant, again pursuant to section 359(2) of the act, to request for information from the applicant. Such a request would be specifically designed to invite the applicant to produce satisfactory evidence of a current enrolment given that they have produced none to date. After considering this possible course, the Tribunal has decided against it. The Tribunal considers it would not be appropriate to do so for a variety of reasons as set out below.

32. Firstly, the Tribunal considers that the applicant has had sufficient time and notice to arrange and produce clear evidence of a current enrolment for the purposes of their application before the Tribunal.  The applicant has not provided such evidence when they could have done so.

33. Secondly, the applicant’s possible mistake as to the legal requirements relating to the need to establish an enrolment first cannot, in the Tribunal’s view, be regarded as a satisfactory reason for delaying the determination of this matter.

34. Thirdly, while the Tribunal may have a general duty to inquire, its role is not to advise and advocate for a particular outcome.  If the Tribunal were to write to the applicant, specifically requesting that he provide further evidence of a current enrolment, implicit in that request would be advice that the applicant’s case as it stands is deficient.  It would also suggest that the deficiency is capable of being remedied if the applicant were to take certain affirmative action.  In effect, the Tribunal would be assisting the applicant to bolster their case to increase their chances of obtaining a favourable outcome.  That is essentially the role of an advocate.  It is not a proper or appropriate function for this Tribunal.

1. Fourthly, writing to the applicant again would frustrate the purposes of the Act. Division 5 of Part 5 of the Act (section 375A to section 367) was intended by Parliament to constitute an exhaustive statement of the principles of natural justice in relation to the matters it deals with. The Tribunal’s original s359(2) letter was designed to elicit evidence of enrolment if any such evidence existed. What the applicant produced was insufficient to meet the requirements of clause 500.211 of the Regulations. The applicant also took too long to produce the information, such that the Act operates to preclude them from any further hearing. The scheme of this part of the Act is designed to balance the interests of applicants in being able to make their case to the Tribunal as against the public interest in having the Tribunal determine matters that come before it expeditiously and without undue delay. The Tribunal has already afforded the applicant an opportunity to produce satisfactory evidence of a current enrolment pursuant to s359(2) of the Act. To provide the applicant with another such opportunity because what they produced was unsatisfactory cannot be justified. The Tribunal must now move to make a determination based on the information before it.

   Conclusion on enrolment

2. The applicant’s evidence in his submissions of 3 December 2019 is that he does not have a current COE.  The Tribunal considers that the determinative issue in the applicant’s case has changed as a current confirmation of enrolment has not been provided and the applicant’s own evidence is that he is not currently enrolled and has not been enrolled in a registered course at all times while in Australia as the holder of a student visa and most significantly from January 2019.  It is the applicant’s responsibility to ensure he is complying with the conditions of his visa at all times. 

3. The Tribunal has no evidence of a current Confirmation of Enrolment which would establish that the applicant meets the essential requirement under clause 500.211(a). The applicant has had an adequate opportunity to obtain such evidence over the last twelve months and certainly since receiving the s359(2) letter in November 2019. In the circumstances, the question of whether the applicant meets the criteria under clause 500.211 has become determinative for the purposes of the case before the Tribunal. If the applicant does not meet the criteria under clause 500.211, then there is no utility in the Tribunal proceeding to consider whether the genuine temporary entrant criteria are met under clause 500.212.

4. The applicant does not meet the regulatory requirements for the grant of a student visa because there is no evidence satisfying any of the criteria in clause 500.211 of the Regulations.

   FINAL CONCLUSIONS

5. Therefore, the Tribunal is not satisfied that at the time of its decision, the applicant was enrolled in a course of study and accordingly clause 500.211 of the Regulations is not met.

6. 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

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

   T. Quinn

   Member