Li (Migration) - [2021] AATA 5422

Li (Migration) [2021] AATA 5422 (19 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Luqiao Li
CASE NUMBER:  2001659
HOME AFFAIRS REFERENCE(S):          BCC2019/4330783
MEMBER:T. Quinn
DATE:19 December 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 19 December 2021 at 5:34pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–– applicant failed to provide the information within the prescribed period –not currently enrolled in a registered course of study– no current confirmation of enrolment– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 338, 347, 359, 360, 363, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212
Education Services for Overseas Students Act 2000
CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Khan v Minister for Immigration & Another [2019] FCCA 565
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li[2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 15 January 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).
The applicant applied for the visa on 30 August 2019 (‘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.
On 15 January 2020, 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.
On 30 January 2020, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.
Approximately 23 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 12 August 2021, the Tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 5422
Decision Date: 19 December 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant the applicant a Subclass 500 (Student) visa. The applicant had failed to provide requested information within the prescribed period and was not currently enrolled in a registered course of study, nor did they have a current confirmation of enrolment.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 500 (Student) visa, specifically the requirement to be enrolled in a registered course of study. The Tribunal also considered whether it was appropriate to postpone its determination to request further information from the applicant.

The Tribunal reasoned that the criterion of being enrolled in a registered course of study, as stipulated in clause 500.211 of the Regulations, is a foundational requirement for the grant of a student visa. Absent evidence of such enrolment, other primary criteria cannot be considered. The Tribunal noted that a PRISMS search indicated the applicant's previous enrolment had been cancelled for non-payment of fees. Despite being notified of this information and invited to respond, the applicant failed to provide any evidence of current enrolment or complete a requested questionnaire. The Tribunal concluded that it would not be appropriate to postpone its determination, given the applicant's lack of response and the absence of any satisfactory evidence of enrolment.

Consequently, the Tribunal found that the applicant did not meet the criteria for a Subclass 500 (Student) visa. The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 The applicant did not complete the questionnaire requested to be completed in the s359(2) letter. This puzzles the Tribunal. The Tribunal undertook a PRISMS search on 18 October 2021. This search indicates that the applicant’s most recent enrolment in a Diploma of Travel and Tourism Management was cancelled on 2 November 2020 for non-payment of fees.[13] [13] See Tribunal file document ID 8967952. On 22 October 2021, the Tribunal wrote to the applicant, pursuant to section 359A of the Act, explaining the contents of the PRISMS search, its relevance to her case and indicating that the question for determination before the Tribunal has changed. That letter stated that the information in the PRISMS search could be relied upon as the reason or part of the reason for the Tribunal affirming the decision in her case. The Tribunal invited the applicant to comment or respond to this information by 5 November 2021. To date, the Tribunal has not received any response to this correspondence. There is no current confirmation of enrolment in the applicant’s name for any course presently before the Tribunal. The s359(2) letter made several enquiries about enrolment in a registered course of study and current confirmation of enrolment and, 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.’ The s359(2) letter also requires a questionnaire to be completed (‘the questionnaire’). 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.” The applicant has not responded to the s359(2) letter or completed the associated questionnaire, or in fact, made any submissions regarding their student visa since making their application for review in January 2020.Not Appropriate for Tribunal to Postpose Determination 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 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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