Li (Migration)

[2020] AATA 2400

Li (Migration) [2020] AATA 2400 (12 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zonglun Li

CASE NUMBER:  1825622

HOME AFFAIRS REFERENCE(S):          BCC2018/1987660

MEMBER:Michael Biviano

DATE:12 June 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 12 June 2020 at 4:52pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no response to tribunal’s s 359(2) letter – visa and study history – no evidence of current enrolment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2) 359A, 360(3), 363A

Migration Regulations 1994 (Cth), Schedule 2, cl 500.211, 500.212(a)

CASE
Hasran v MIAC [2010] FCAFC 40
Singh v MIAC (2009) 236 FLR 384

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 14 August 2018 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 8 May 2018. 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. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the reason that he was not a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily.

4. On 24 February 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act (24 February Letter), inviting the applicant to provide information in writing about whether he was enrolled in a registered course of study and a genuine applicant for entry and stay as a student. The invitation was sent to the last address provided in connection with the review, being his email address and advised that, if the information was not provided in writing by the prescribed period, being 10 March 2020, 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 he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The review applicant did not provide the information within the prescribed period and no extension of time was requested. In these circumstances, s.359C of the Act applies and pursuant to s.360(3) of the Act the review applicant is not entitled to appear before the Tribunal. The effect of s.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 her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

6. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicants, in as much detail as is necessary to enable the examiner to establish the relevant facts.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.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. The issue in the present case was whether the applicant was a genuine applicant for entry and stay as a student, however, the issue became whether the applicant was enrolled in a registered course of study.

   Enrolment (cl.500.211)

9. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211, which relates to postgraduate thesis marking, Foreign Affairs students or Defence students (see cl.500.211(b) to (d) respectively).

10. ‘Course of study’ is relevantly defined in cl.500.111 of Schedule 2 to the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

11. The applicant is a 23-year-old Chinese national who came to Australia on 4 April 2013.

12. The decision record of the delegate of the Department of Home Affairs dated 14 August 2018, which was provided to the Tribunal by the applicant, confirms the applicant made the current application for a student Class TU Subclass 500 visa on 8 May 2018 (Decision Record). 

13. The Decision Record confirms that the applicant had been initially granted a Student (Class TU) (Subclass 571) visa to come to Australia to study and on 7 March 2016, he was granted a further Class TU573 visa to study.

14. The applicant submitted to the Department his Victorian Certificate of Education which he obtained in December 2015 and an interim transcript from the Universal Institute of Technology dated 14 June 2017, confirming that he was enrolled in a Diploma of Leadership and Management which was to conclude on 11 February 2018, but the Study Plan the applicant provided to the Department dated 3 May 2018, confirmed that he did not pass and obtain that qualification.

15. The Decision Record confirms that at the time of the application for the visa, which is the subject of this review application, the applicant was enrolled to undertake the following courses:-

    a.Certificate III in Commercial Cookery;

    b.Certificate IV in Commercial Cookery; and

    c.Diploma of Hospitality Management.

    (Hospitality Courses)

16. The Decision Record confirms that the Hospitality Courses were to end on 2 March 2020.

17. The Tribunal, in the 24 February Letter, invited the applicant to provide information in writing about the course(s) of study he was undertaking and about his entry and stay in Australia as a student. The invitation stated:

    As 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.

    Accordingly, you will need to provide sufficient evidence to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student.

18. The applicant has not provided any information to the Tribunal about whether he is currently enrolled in a course of study.

19. The Tribunal notes that the confirmation of enrolment (COE) that the applicant provided to the Tribunal with the review application is no longer current and does not establish that the applicant is enrolled in a registered course of study. In the circumstances where a COE is not current, it cannot be relied upon as evidence of enrolment. In Singh v MIAC [2009] 236 FLR 384, at [40]–[55], FM Turner held that the intention of the COE is to ensure that at the time of the decision the applicant is enrolled in or has a current offer to enrol in an approved course of study. The Court held that to accept a COE which was not current would be inconsistent with the legislation then in place.

20. On 26 May 2020, the Tribunal obtained a copy of the applicant’s enrolment record from the Provider Registration International Student Management System Database (PRISMS record). The PRISMS record confirmed that the applicant had finished Certificate III in Commercial Cookery but his enrolment in Certificate IV in Commercial Cookery and Diploma of Hospitality Management was cancelled on 17 April 2019, for non-commencement of studies. The PRISMS record confirmed that the applicant was not enrolled in a registered course of study and had not been enrolled since 17 April 2019. In accordance with its obligations pursuant to s.359A of the Act, on 27 May 2020 the Tribunal sent a letter to the applicant enclosing a copy of the PRISMS record, explaining to the applicant what the PRISMS record is, the relevance of the record to the review and the consequences of it relying on the information contained in the record. The letter relevantly stated in relation to the issue of not being enrolled:-

    A copy of the relevant PRISMS record is enclosed.

    The information is relevant to the review because the Tribunal may form the view that you are not a genuine applicant for entry and stay as a student. The basis for this view is that you have been enrolled in 10 tertiary and vocational education training courses while in Australia and only completed 1 vocational education training course over a period of more than six years, which is not temporary and not consistent with a genuine intention to remain in Australia for the purposes of study. Further it does not appear that you have been enrolled in a course of study since 17 April 2019.

    One of the primary criteria that an applicant for a Student visa must satisfy is cl.500.212 that the applicant must be a genuine applicant for entry and stay as a student. The consequence of the Tribunal relying on this information may be that you do not meet this criterion, and the decision of the delegate may be affirmed.

    Further the information provides that you are not currently enrolled in a course of study. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Clause 500.211 relevantly requires that at the time the Tribunal makes decision the applicant is enrolled in a course of study: cl.500.211(a). The consequence of the Tribunal relying on this information is that the Tribunal may determine that you are not currently enrolled in a course of study and you may not meet this criterion under cl.500.211, and the decision of the delegate may be affirmed.

    You are invited to give comments on or respond to the above information in writing.

21. The Tribunal invited the applicant to comment on or respond to the invitation or seek an extension of time in which to comment or respond on the information contained in the record by 10 June 2020. No response or comment was received from the applicant.

22. The Tribunal has not received a COE or any supporting evidence confirming that the applicant is currently enrolled in a registered course of study, and based on the material and evidence submitted to the Tribunal by the applicant and the PRISMS record, it is not satisfied at the time of this decision that the applicant is enrolled in a course of study.

23. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

24. 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

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