Kaur (Migration)

[2020] AATA 5724

Kaur (Migration) [2020] AATA 5724 (17 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Harjeet Kaur
Inderjit Singh

CASE NUMBER:  1930755

HOME AFFAIRS REFERENCE(S):          BCC2019/4251863

MEMBER:T. Quinn

DATE:17 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 17 October 2020 at 11:40am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not a genuine temporary entrant – applicant requested decision to be made on papers – no evidence of current enrolment – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act2000
Migration Act 1958, ss 65, 338(2), 347, 359(2)
Migration Regulations 1994, Schedule 2, cl 500.212

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

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 10 October 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicants applied for the visas on 26 August 2019 (‘the application’).  At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (‘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 10 October 2019, 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 30 October 2019, the applicants applied for a review of the delegate’s decisions with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. More than 11 months 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 1 June 2020, 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’). The applicants responded to the s359(2) letter on 12 June 2020 which was within the prescribed period.

6. The applicants were listed to appear before the Tribunal on 2 October 2020 to give evidence and present arguments.  However, on 28 September 2020 they filed a response to hearing invitation indicating that they did not wish to attend the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow them to appear (document ID 7692020).  

7. The applicants were assisted in relation to the review by their registered migration agent, but also elected not to attend the hearing.

8. It is for the applicants to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicants’ 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 applicants, in as much detail as necessary, to enable the decision maker to properly consider the case that is being put.

9. The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the review 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[1] and Manna v Minister for Immigration and Citizenship[2] 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[3] regarding reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered analogous issues, as well as the decision of Kaur v Minister for Immigration and Border Protection.[5]

    [1]         [2002] FCA 617.

    [2]         [2001] FMCA 28.

    [3]         [2013] HCA 18 (8 May 2013).

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

    [5] [2014] FCA 915 (28 August 2014).

11. In these circumstances, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information.

12. The Tribunal has proceeded to a decision having regard to all the information before it, including the material and evidence provided by the applicant prior to and on the day of the hearing.

13. 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 with the Department and with the Tribunal; 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

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 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.

15. 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)

16. 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.[6] The applicant does not claim to meet any of the alternative criteria in clause 500.211 of the Regulations.

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

17. ‘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.[7]

    [7]Regulation 1.03 of the Regulations.

18. 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.[8]  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.[9] 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.

    [8]Section 10 of the ESOS Act.

    [9]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

19. 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.

20. 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.[10]  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.

    [10]Schedule 5 to the Regulations.

21. 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

22. The primary applicant is a 24-year-old female Indian citizen who first arrived in Australia on 12 June 2019 and who is the spouse of the second applicant (aged 26 years).[11] 

    [11] See applicant’s response to the s359(2) letter.

23. The applicant’s response to the s359(2) letter indicates that she is not currently enrolled in a registered course of study. The Tribunal does not have a current COE before it, demonstrating that the applicant is currently enrolled in a registered course of study as required by the Act and Regulations.

24. The s359(2) letter dated 1 June 2020, 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.’

25. 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?’ To this question, the applicant answered ‘no’

26. 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 listed the courses she had proposed to the Department: a Certificate III in Commercial Cookery as ‘did not complete’; and a Certificate IV in Commercial Cookery and Diploma of Hospitality Management both of which she ‘never started’.  In this section of the questionnaire, information is requested in relation to all enrolments and 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. 

27. The confirmations of enrolments previously supplied to the Department are now out of date given the applicant is no longer engaged with any study.[12]  There is no evidence that the applicant is currently enrolled in these, or any other, course(s). 

    [12]        See Department file document ID 6522736, being confirmations of enrolments created August 2019.

28. 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 additional material.

29. When the Tribunal wrote to the Applicants by letter on 17 September 2020 inviting them to the hearing scheduled for 2 October 2020, the Tribunal advised that it was necessary for the applicant to produce a COE or other documents showing that they are currently enrolled in a course of study as defined by Clause 500.211 of Schedule 2 of the Regulations. It was made clear in that letter that proof of enrolment is a requirement for the grant of a student visa. The Tribunal requested such proof be provided 7 days prior to the scheduled hearing. As at the time of this decision, there remains no such proof.

30. On 28 September 2020, the applicant responded to the hearing invitation and T did not include any additional material.

31. 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. The applicant’s own evidence in her response to the s359(2) letter is that she is not enrolled, and it appears the applicant has allowed any enrolments to lapse. The applicant has made no suggestion that they obtained a formal deferral of the starting date or obtained a new COE for a registered course. On the contrary, the evidence suggests that the applicant may not have been studying at all since she applied to the Department for her student visa.

32. 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

33. 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 further 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.

34. 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.

35. 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.

36. 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.

37. 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 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

38. The evidence before the Tribunal is that the applicant 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.  It is the applicant’s responsibility to ensure she is complying with the conditions of her visa at all times. 

39. 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. 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.

1. 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

2. 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.

3. 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.

4. Consequently, as the decision in relation primary applicant’s review has been affirmed, the Tribunal cannot be satisfied that clause 500.311 in Schedule 2 of the Regulations is met by the secondary applicant as it requires that they be a member of the family unit of a person who satisfies, or has satisfied, the relevant primary criteria.

5. Therefore, the criteria for the grant of a Student visa are not met by the secondary applicant and the decision in relation to the secondary applicant’s review must also be affirmed.

   DECISION

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

   T. Quinn
   Member