LIM (Migration)

[2021] AATA 1814

LIM (Migration) [2021] AATA 1814 (30 April 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr JOO KEAT LIM

CASE NUMBER:  1910673

DIBP REFERENCE(S):  BCC2018/5893269

MEMBER:  Michael Bradford

DATE AND TIME OF

ORAL DECISION AND REASONS:          30 April 2021 at 9:54 am (NSW time)

DATE OF WRITTEN RECORD:                20 May 2021

PLACE OF DECISION:  Sydney

DECISION:  The Tribunal affirms the decision under review.

Statement made on 20 May 2021 at 2:46pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – not enrolled in a course of study – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

APPLICATION FOR REVIEW

Preliminary

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 April 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

1. At the hearing on 30 April 2021 the Tribunal made an oral decision and gave oral reasons for that decision.

1. The applicant has since requested a written record of those reasons.

1. This is the written record.

Approach to the issues arising on the review and procedural aspects

1. This is an application to review a decision of a delegate of the Minister for Home Affairs who refused to grant to the applicant a student (temporary) (class TU) visa on the ground that he was not a genuine temporary student in Australia.

1. The decision to refuse the visa was made on 12 April 2019. The applicant filed his Review application on 29 April 2019 and is therefore within time.

1. For reasons I will come to in a moment, it is unnecessary for the Tribunal to consider whether the applicant is a genuine temporary student in Australia at the time of this decision, because the evidence is clear that he is not currently enrolled in a registered course of study.

1. Just dealing firstly with some procedural matters, the applicant’s documentary case consists only of some Certificates relating to his earlier studies in some Business courses at Duke, a Certificate relating to his more recent studies in a Certificate IV in Commercial Cookery and other documents associated with his completion of that course. There is also an undated email from the applicant, apparently sent to the Tribunal on 15 February 2021, in which he briefly recites his academic history in Australia and in which he expresses the desire to continue to study Aging Support.

1. As I will note in a moment, the applicant says and the Tribunal accepts that he was at one stage enrolled to study a number of VET courses in that field but the evidence reveals quite clearly, and he accepts, that he cancelled his enrolments in those courses in or about late April 2019.

1. The applicant also accepts that he received the Section 359(2) Request letter dated 8 January 2021 on or about that date and that he read it. There is no evidence from him to the effect that he did not understand the content of the letter although he says that he was not aware that he had to be enrolled in a registered course of study at the time of the hearing, an explanation which the Tribunal is quite unable to accept.

1. Quite apart from the content of the Sec 359 letter, and in complete disregard of the requests contained in it, the simple fact is that the applicant did not complete the Online Response Form and did not otherwise provide the information requested. He did apply to the Tribunal for an extension of time in which to provide documents in an email which he sent on 17 January 2021. The request for additional time was granted on 18 January 2021 and he was given until 19 February 2021 to provide those documents.

1. As has been indicated, the only documents which the Tribunal has on file, apart from some other records which have been obtained from other sources, is the Certificates of completion relating to his Business studies at Duke and the CIV in Commercial Cookery, together with the applicant’s February email.

1. There are no other documents in support of his review case. The applicant also accepts having received the Hearing Invitation on or about the date it bears, 9 March 2021. Again, he accepts that he read that letter which called for, among other things, a copy of his current confirmation of enrolment. The Tribunal notes that that invitation which appointed today, 30 April, for the in-person hearing, was accepted by the applicant on 15 March 2021.

1. The applicant appeared in person at the hearing today, 30 April, to give evidence and present his review case. He was not assisted by a migration agent and, indeed, he does not appear to have retained an agent to assist him in his review case. Certainly, there is no evidence before the Tribunal that he has and, indeed, he indicated in his oral evidence toady that he has not. He appears to accept that this may well have been a mistake, for reasons that I will come to in a moment. The applicant gave his oral evidence through an interpreter as his understanding of spoken English is limited. He appeared to understand some of my questions, and I invited him to respond in English if he could do so comfortably, and he did on occasions, but mostly he went through the interpreter.

1. For the reasons which follow, the decision of the delegate must be affirmed but not on the ground which the delegate resolved adversely to the applicant.

Findings and evidence on the review

1. The background would appear to be as follows. The applicant was born in Malaysia on 16 December 1985. He was granted a Tourist visa in November 2013 and he first arrived in Australia, according to the Movements record, on 24 December of that year. He was granted a Bridging A visa in March 2014 due to expire on 16 August 2015. He departed Australia on that date and was granted another UD 601 visa offshore on 13 July 2016. He arrived back in Australia on 13 August 2016. On 24 November 2016 he was granted a TU 500 visa, apparently to study the Business courses at Duke. I say that because the applicant’s documentary case, such as it is, establishes that he completed a Diploma of Business at Duke in September 2017. He said in his oral evidence, and the Tribunal accepts, that he began studies in that course at or about the time he obtained the TU 500.

1. He then commenced his studies in the Advanced Diploma of Business at Duke. The Tribunal accepts that this would have been in or about November 2017, not long after he had completed the Diploma. He said as much in his oral evidence. He completed the Advanced Diploma on time in November 2018. The Tribunal has Certificates of completion issued by Duke in relation to each of these courses.

1. The Visa Application (VA) was filed on 31 December 2018. It nominates three VET courses, namely a CIII in Individual Support, a CIV in Aging Support and a Diploma of Community Services.

1. It appears that he was enrolled in this package shortly prior to the filing of the VA. His application was refused on 12 April 2019 on GTE grounds.

1. On 1 May 2019, the Tribunal acknowledged receipt of the Review Application in a standard letter of that date. A form was attached to this letter which informed the applicant about the review process in quite some detail, including how long the review would take, where the application will be processed, the steps to be taken, the need for evidence, how to engage in future correspondence and other preliminary matters of that sort.

1. There is no evidence from this applicant that he did not receive the letter of 1 May 2019, together with the attachments, and indeed the strong probability is that he would have received that letter and its attachments.

1. The evidence is that the applicant’s enrolments in the CIII in Individual Support, the CIV in Aging Support and the Diploma of Community Services were all cancelled. He says in his oral evidence, and the Tribunal is prepared to accept, that he initiated the cancellation of those enrolments in or about late April 2019, that is at or about the time his Review Application was filed.

1. He said as much at one point in his oral evidence but later appeared to suggest that he did, in fact, engage in studies in the CIII for some period in early 2019. It may well be that he did begin studies in the CIII but, even on his own evidence, he initiated the cancellation of his enrolment in that and the other two courses in or about April 2019. There can be little doubt that he would have received Confirmation of Enrolments in those courses prior to lodging the VA. Indeed, he appears to have accepted that he did.

1. His documentary case includes a Certificate of completion of his studies in the CIV in Commercial Cookery at the Institute of Advancing Careers. The Tribunal, of course, accepts that he did enrol in that course before he commenced studies in it. He said that he completed his studies in this course on time in the early part of this year. As the Certificate relating to his studies in this course was issued on 1 February of this year the Tribunal accepts that he did.

1. He accepted in his oral evidence that he received the Sec 359(2) Request and the Hearing Invitation.

1. As is well-known, for the applicant to succeed in this review he must establish at least two things; firstly, that he is currently enrolled in a registered course of study at the time of this decision and, secondly, that he is a genuine temporary student in Australia.

1. As I indicated earlier, the Tribunal need not pause in this case to consider the GTE issue because, on any view, the applicant is not currently enrolled.

1. He accepted as much in his oral evidence although he purported to explain his reasons as to why he was not enrolled. In short, he said that he did not know that he needed to be enrolled in a registered course. The Tribunal is quite unable to accept this explanation given the steps which have been taken in this case to bring home to him the need to provide evidence by which to establish this very thing. He went on to say that after cancelling his enrolments in the CIII in Individual Support and the other courses in that package he did not take any steps to re-enrol in those courses or any other registered course, apart from the Commercial Cookery course, because he did not know how long the AAT process would take but this evidence is quite incompatible with the correspondence which the Tribunal has sent to him from time to time since the Review Application was filed.

1. When his attention was drawn to the fact that he had not corresponded with the Tribunal in relation to the matter, apart from seeking an extension of time in which to comply with the 359(2) Request and his email of 15 February 2021, he accepted that he had not done so. In his email he recites his short academic history in Australia and says that he wanted to continue to study Aging Support but had been prevented from doing so because most colleges will not accept a student if he or she is holding a Bridging visa.

1. The Tribunal does not accept this explanation, in the form in which it was given. He goes on to say in that email that he had enrolled in the Commercial Cookery course but why he elected to enrol in that course rather than re-enrol in the VET package in Individual and

Aging Support at another college is unknown to the Tribunal. A Commercial Cookery course appears to be completely unrelated to his previous studies. It appears to the Tribunal to have been something of an afterthought perhaps to bolster his case on the GTE issue.

1. But it really does not matter because on any view of this evidence the applicant is not currently enrolled in a registered course of study. As I have already indicated, he accepts that he is not.

1. He said in his oral evidence that he intends to study the VET package in Aging Support if given the opportunity but in circumstances where he initiated the cancellation of his enrolments in these courses as long ago as April 2019, that is about two years ago, the Tribunal is quite unable to accept that he does indeed intend to further engage in studies in this package. But even if he did intend to recommence those studies, it does not assist him on the issue of whether he is currently enrolled.

1. As is well known, the requirement in the Regulations (clause 500.211) that he be currently enrolled in a registered course of study is a mandatory requirement. It is not something which the Tribunal is at liberty to waive, disregard or discount.

1. I should mention before finishing that the applicant also said that he wanted to obtain his visa and then re-enrol in the Aging Support package but the Tribunal is unable to accept that he has any such intention given that he has had 2 years and thus ample opportunity in which to take steps to do that and has not done so.

1. He said also towards the end of his oral evidence that he did not know it was a precondition to have a current COE in order to progress his review case but the Tribunal cannot accept that he did not know of this requirement given the correspondence and the information which the Tribunal had conveyed to him in the course of the review process.

1. He accepts that he should have engaged a migration agent to give him advice but, unfortunately, he did not do so. He also said that, although he had not been a good student, he wanted to develop aging and support skills and assist people in need. This may be so but it is not something which the Tribunal can do anything about in circumstances where he is not currently enrolled.

1. This being so, it is unnecessary for the Tribunal to consider whether the applicant is a genuine temporary student in Australia. The Tribunal would have had concerns about that issue on the very limited information available but, as I say, it is unnecessary to further explore it.

Conclusion

1. Given those findings, the Tribunal must conclude that the criteria for the grant of a subclass 500 student visa are not met in this case in that the applicant is not currently enrolled in a registered course of study

1. As the applicant does not claim to meet the alternative criteria for a subclass 590 student guardian visa, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a student (temporary) (class TU) visa.

Michael Bradford Member