Kongkulluxamee (Migration)

[2021] AATA 2680

Kongkulluxamee (Migration) [2021] AATA 2680 (13 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kanyakorn Kongkulluxamee

CASE NUMBER:  1930347

HOME AFFAIRS REFERENCE(S):          BCC2019/4532218

MEMBER:Amanda Pearson

`DATE:13 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 13 June 2021 at 9:12pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – applicant failed to provide requested information –genuine temporary entrant criterion not met–no current confirmation of enrolment– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212
Education Services for Overseas Students Act 2000

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 10 October 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 10 September 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. In this case there is only one applicant. She is from Thailand. She seeks a student visa so that she can reside in Australia while undertaking a course of study. For the visa to be granted, the Applicant must meet the primary criteria set out in Part 500 of Schedule 2 of the Regulations.[1]

   [1] Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

4. The student visa was refused in this case because the delegate found that the Applicant did not satisfy the primary criteria contained in cl 500.212 of Schedule 2 of the Regulations. The delegate was not satisfied that she was a genuine applicant for entry and stay as a student. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Tribunal by the Applicant when she lodged his review application on 25 October 2019.

   DETERMINATION OF APPLICATION WITHOUT HEARING

5. It has now been almost 20 months since the Applicant lodged her review application. In coming to consider the merits of his case, the Tribunal recognises that the Applicant’s personal circumstances 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 application.

6. To this end, by letter dated 3 February 2021 the Tribunal wrote to the Applicant inviting her pursuant to s 359(2) of the Act to provide information that could assist the Tribunal in determining her application (‘the Tribunal’s s 359(2) request’). The Tribunal’s s 359(2) request included a questionnaire that specifically invited the Applicant to provide information about her personal circumstances, including information about:

   ·her education history overseas;

   ·her education history in Australia;

   ·her current course enrolments in Australia;

   ·previous Australian visa applications she has made;

   ·her immigration history in Australia and in other countries;

   ·her work experience in Australia and in other countries;

   ·her living expenses in Australia;

   ·her family;

   ·her property and assets;

   ·her plans, including job plans, once she completes her proposed course of study; and

   ·concerns she may have about military service commitments, or political or civil unrest in her home country.

7. The Tribunal’s s 359(2) request was sent to the last known address provided to the Tribunal by the Applicant in connection with the present review. The Applicant was advised that if the requested information was not provided in writing by the prescribed period (ie, within 14 days following receipt of the request),[2] the Tribunal may proceed to make a decision without taking further steps to obtain the information. The Tribunal further advised that a failure to provide the requested information would result in the Applicant losing any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

   [2] See Migration Regulations 1994 (Cth), reg 4.17(4)(b)(i).

8. The Applicant did not respond to the Tribunal’s s 359(2) request by the specified deadline of 17 February 2021. She has not requested an extension of time to provide the information requested. The Tribunal therefore has no additional information beyond that which was before the delegate and which is otherwise discernible from the delegate’s decision.

9. By the operation of s 359C and 360 of the Act, in circumstances where the Tribunal has invited the Applicant to provide information pursuant to s 359(2), and the Applicant has failed to do so within the prescribed period, the Tribunal may proceed to determine the review application in her absence.  Furthermore, the effect of s 363A of the Act is that the Applicant has no entitlement to a hearing and the Tribunal has no power to permit her to appear.[3]

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

10. The Tribunal has decided to determine this application having regard to all the information before it. This includes the information that was previously provided by the Applicant to the delegate and information that may be discerned from the delegate’s decision itself.

11. For the following reasons, the Tribunal has decided to affirm the decision under review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Clauses 500.211 to 500.218 of Sch 2 of the Regulations contain the primary criteria relating to the grant of Subclass 500 student visas. In this case, only cl 500.211 (the enrolment criterion) and cl 500.212 (the genuine applicant criterion) are relevant for determining the outcome of the review application. Whether an applicant satisfies the criteria is to be determined at the time the Tribunal’s decision is made.[4]

    [4] Migration Regulations 1994 (Cth), Sch 2, cl 500.2.

    Enrolment Criterion

13. For the purposes of the application on review before the Tribunal, cl 500.211 requires that a student visa application be founded on evidence of the applicant being enrolled in ‘a course of study’.[5] A ‘course of study’ is defined as ‘a full-time registered course of study.’[6] A ‘registered course’ is one which is provided by an institution which has been registered under the Education Services for Overseas Students Act 2000 (Cth) (‘ESOS Act’) to provide that course to overseas students.[7]

    [5] Migration Regulations 1994 (Cth), Sch 2, cl 500.211(a). The present case is not advanced on the basis that the Applicant satisfies any of the other criteria contained in cls 500.211(b), (c) and (d).

    [6] Migration Regulations 1994 (Cth), reg 1.03.

    [7] Migration Regulations 1994 (Cth), reg 1.03.

14. 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 will enter 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 cl 500.211 of Sch 2 of the Regulations.

    Importance of Current Enrolment

    [8] Education Services for Overseas Students Act 2000 (Cth), s 10.

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

15. 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. 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. Secondly, it obliges the applicant to pay for the course. Thirdly, 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 demonstrates a present and operating commitment on the part of the applicant to complete a course of study. It represents a tangible and immediate need for a student visa.

16. 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 remain 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] Migration Regulations 1994 (Cth), Schedule 2, cl 500.611(1)(a); Schedule 8, Condition 8202(2)(a).

17. 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, consideration of whether the primary criteria are met, as contained in cls 500.212 to 500.218, is premised on the enrolment criterion in clause 500.211 being met. If cl 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.

    Applicant Not Currently Enrolled

18. In this case, the Tribunal cannot be satisfied that the Applicant is currently enrolled in a registered course of study. As the delegate’s decision record indicates, when the delegate came to consider the merits of the original visa application there were 1 enrolment produced that demonstrated the criteria in cl 500.211 were satisfied. The difficulty for the Tribunal in coming to determine the matter now is that it has been nearly 20 months since that information was before the delegate. The information is out of date. More importantly, the proposed course was cancelled in May 2020.

19. The Tribunal has contemplated events that may have transpired since that time. The Applicant may have completed the course. Alternatively, she may not have completed the course. She may be enrolled in another course or she may not be enrolled in anything at all. In the absence of any updated information that could have been provided by the Applicant in response to the Tribunal’s s 359(2) request, there are many possible scenarios that may be contemplated.

20. The Tribunal does not consider it appropriate to engage in such speculation for the purposes determining whether the criteria contained in cl 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 course of study for the purposes of cl 500.211. There is presently no such evidence before the Tribunal.

    Not Appropriate for Tribunal to Postpone Determination

21. The Tribunal has considered the possibility of postponing the determination of the present application on review and writing to the Applicant, again pursuant to s 359(2) of the Act, to request further information from her. Such a request would be specifically designed to invite the Applicant to produce satisfactory evidence of a current enrolment.

22. After considering this possible course, the Tribunal has decided against it. The Tribunal considers it would not be appropriate to do so because it has already requested that information by its original s 359(2) request dated 3 February 2021. The Applicant did not respond to this request. To write to the Applicant again would frustrate the purposes of the Act. Division 5 of Part 5 of the Act (ss 357A to 367) was intended by the Parliament to constitute an exhaustive statement of the principles of natural justice in relation to the matters it deals with.[11] The Tribunal’s original s 359(2) request was designed to elicit evidence of enrolment if any such evidence existed. 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.

    [11] Migration Act 1958 (Cth), s 357A.

23. The Tribunal has already afforded the Applicant an opportunity to produce satisfactory evidence of a current enrolment pursuant to s 359(2) of the Act. To provide her with another such opportunity, because she did not respond to the original request, cannot be justified. The Tribunal must now move to make a determination based on the information before it.

    Summary

24. Based on the material before the Tribunal, the Tribunal is not satisfied that the Applicant is currently enrolled in a registered course of study for the purposes of cl 500.211 of Schedule 2 of the Regulations.

    Genuine Applicant Criterion

25. In the circumstances, the question of whether the Applicant meets the criteria under clause 500.211 has become determinative for the purposes of the outcome of the case now before the Tribunal. If the Applicant does not meet the criteria under the clause 500.211, there is no administrative utility in the Tribunal proceeding to consider whether the genuine applicant criterion is met under clause 500.212.

26. 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

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

    Amanda Pearson
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.