Li (Migration)

[2020] AATA 5734

Li (Migration) [2020] AATA 5734 (9 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Zile Li

CASE NUMBER:  2011428

HOME AFFAIRS REFERENCE(S):          BCC2017/2846789

MEMBER:T. Quinn

DATE OF ORAL DECISION:  9 December 2020

DATE OF WRITTEN STATEMENT:         9 December 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 09 December 2020 at 10:48am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit Court remittal – genuine temporary entrant as student – enrolled in a registered course – decision under review affirmed          

LEGISLATION

Education Services for Overseas Students Act 2000, s 10
Migration Act 1958, ss 65, 338, 347, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212; r 1.03

CASES

SZSSC v Minister for Immigration and Border Protection [2014] FCA 863

STATEMENT OF DECISION AND REASONS

ORIGINAL APPLICATION FOR REVIEW

1. This is the return of an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the delegate’) on 25 September 2017 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 applied for the visa on 9 August 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 25 September 2017, 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 13 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. On 22 February 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 first s359(2) letter’). In his response to the first s359(2) letter, the applicant elected to have their matter decided without a hearing.

6. On 6 May 2019, the Tribunal handed down a written decision affirming the delegate’s decision (‘the First Tribunal Decision’). 

7. The applicant made application to the Federal Circuit Court of Australia (‘FCCA’) for the FCCA to order that, inter alia, the First Tribunal Decision to be quashed.

8. On 25 June 2020, the FCCA made orders (by consent) that, inter alia, the First Tribunal Decision be quashed, and that this Tribunal be required to determine the application of 13 October 2017 according to law.  The parties agreed that a jurisdictional error was made in the First Tribunal Decision in that the Tribunal ‘failed to consider a submission of substance: see SZSSC v Minister for Immigration and Border Protection [2014] FCA 863. In particular, the Second Respondent [the Tribunal] failed to consider the Applicant’s explanations as to why he had chosen to study in Australia, which were provided to the Second Respondent [the Tribunal] in a submission dated 22 March 2019, and which were relevant to paragraphs 9(a) and 11(e) of Direction Number 69- Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications.

   RECONSIDERATION

9. More than three years have elapsed since the making of the delegate’s decision and eighteen months have passed since the First Tribunal Decision. 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 26 November 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 applicant responded to the s359(2) letter on 4 December 2020.

10. The applicant appeared before the Tribunal via telephone hearing on 9 December 2020 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. 

11. 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.

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 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.the oral evidence of the applicant given at the hearing;

    b.all written material filed by or on behalf of the applicant in both Tribunal files (for the present proceeding and the proceeding relating to the First Tribunal Decision);

    c.the FCCA decision and related materials;

    d.the submissions made by the applicant’s migration agent; and

    e.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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. While the determinative issue before the delegate and previous Tribunal member in relation to the First Tribunal Decision was whether the applicant met the genuine temporary entrant criteria under clause 500.212 of the Regulations, it became clear at the outset of the hearing that the applicant did 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.[1] The applicant does not claim to meet any of the alternative criteria in clause 500.211 of the Regulations.

    [1]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.[2]

    [2]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.[3]  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.[4] 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.

    [3]Section 10 of the ESOS Act.

    [4]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 remain enrolled in a registered course of study.[5]  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.

    [5]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.

    THE HEARING

22. In the introduction to hearing, the Tribunal stated that in an application for review of this type, it must consider certain things:

    a.one is whether you are enrolled in a course of study (cl500.211(a)); and

    b.the other is whether you are a genuine applicant for entry and stay as a student intending genuinely to stay in Australia temporarily (cl 500.212(a)).

23. The Tribunal then asked if the applicant had any questions to which they responded in the negative.

24. The Tribunal also confirmed that the applicant had read the questionnaire forming the s359(2) letter when answering the questions in the questionnaire.

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?’ 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).

26. The questionnaire to be completed pursuant to the s359(2) letter requests information in relation to all enrolments and specifically states that this includes: cancelled enrolments; courses successfully completed; and current or future enrolments. In response to this question, the applicant did not list any current or future enrolments.

27. When the Tribunal wrote to the Applicant by letter on 24 November 2020, inviting him to the hearing scheduled for 9 December 2020, the Tribunal advised that it was necessary for the applicant to produce a COE or other documents showing that he is 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. The applicant confirmed at hearing he had read this document as well.

28. The Tribunal enquired about whether the applicant held a current confirmation of enrolment and his evidence was that he did not.

29. The Tribunal considered and explained that the determinative issue in the applicant’s case had changed as a current confirmation of enrolment has not been provided and the applicant’s own evidence was that he understood and that he is not currently enrolled.  

30. The applicant was given an opportunity to provide further evidence to the Tribunal but was unable to produce evidence of a current Confirmation of Enrolment to the Tribunal at the hearing which would establish that they met the essential requirement under clause 500.211(a).

31. 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) of the Regulations.

32. 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.

33. 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.

34. The applicant gave detailed evidence about his understanding of what had occurred in relation to the FCCA proceedings.  He understood that ‘the Department lawyer’ and ‘the AAT lawyer’ told him once he had signed the document, he would not have to go through the court process and would be granted a visa and have his costs paid.  He gave evidence that ‘they said that would pay court fees as long as I go and enrol in a course… I was told that after I got my visa then I could go ahead and enrol in a course’.  The Tribunal took the applicant through the history of his case chronologically and explained that there had been some misunderstanding about what the consent orders at the FCCA meant.  The applicant later gave evidence that he did not enrol because he did not have money and the pandemic has made enrolling difficult and that if he enrolled and did not get a visa the money spent would be wasted.  The Tribunal empathises with the applicant and the confusion around what occurred with consent orders earlier this year and his financial difficulties.  There are, however, financial requirements that must be met before an applicant is entitled to a student visa.  Further, it is the applicant’s responsibility to ensure he properly reads and understands his rights and obligations and there are many professionals available to assist and advise in this regard who he could have engaged if necessary.  In addition, the question of whether an applicant is enrolled or not is one of fact.  In this case, the applicant is not enrolled at the time of decision.

    CONCLUSIONS

35. 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.

36. 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

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

    T. Quinn

    Member