MUTWALE (Migration)

[2019] AATA 6223

MUTWALE (Migration) [2019] AATA 6223 (25 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Owen Sizia Ngelwe MUTWALE

CASE NUMBER:  1730662

HOME AFFAIRS REFERENCE(S):          BCC2017/3373660

MEMBER:T. Quinn

DATE:25 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 25 November 2019 at 5:18pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant failed to provide requested information – no entitlement to a hearing –genuine temporary entrant criterion not met – currently not enrolled – no current COE –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

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the delegate’) on 15 November 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 15 September 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 15 November 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 5 December 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. The applicant was assisted in relation to the review by their registered migration agent.

6. More than 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 20 September 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 s359(2) letter’). The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the prescribed date, being 4 October 2019, 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 they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act.

7. The review applicant’s migration agent contacted the Tribunal on 1 October 2019 stating that they had not been able to locate the applicant and that they had also contacted the applicant’s last employer who also indicated they had not had contact with the applicant in some time.  The applicant’s migration agent therefore ceased to act at this time.

8. The applicant did not provide the information within the prescribed period or otherwise and no extension of time was requested. Where a review applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action.[1] 

   [1] Pursuant to section 359C(1) of the Act.

9. The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, section 359C of the Act applies and pursuant to section 360(3) of the Act the review applicant is not entitled to appear before the Tribunal. The effect of section 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.[2]

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

10. The Tribunal, therefore, has no additional information relating to the applicant’s visa application beyond that which was before the delegate on 15 November 2017 and is otherwise discernible from the delegate’s decision and Department file.

11. The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the review applicant has had a fair opportunity to provide relevant information already.

12. The Tribunal has given consideration to whether it should adjourn the review under section 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs[3] and Manna v Minister for Immigration and Citizenship[4] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.  It has also had regard to Minister for Immigration and Citizenship v Li[5] regarding reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[6] which considered analogous issues, as well as the decision of Kaur v Minister for Immigration and Border Protection.[7]

    [3] [2002] FCA 617.

    [4] [2001] FMCA 28.

    [5] [2013] HCA 18 (8 May 2013).

    [6] [2014] FCAFC 1 (4 February 2014).

    [7] [2014] FCA 915 (28 August 2014).

13. In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information.

14. Accordingly, the Tribunal has elected not to exercise its discretion under section 363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the applicant to the Department and the Tribunal.

15. 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.

16. The Tribunal has proceeded to a decision having had regard to all the information before it, including the information previously provided by the applicant to the Department but without taking further steps to obtain the additional information sought by this Tribunal under section 359(2) of the Act.

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

    STATUTORY FRAMEWORK

18. 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.

19. While the determinative issue before the delegate was whether the applicant met the genuine temporary entrant criteria under clause 500.212 of the Regulations, the evidence before the Tribunal indicates that the applicant does not meet other criteria that must be satisfied for the grant of a student visa.

    Enrolment (clause 500.211)

20. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: clause 500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

21. ‘Course of study’ is relevantly defined in clause 500.111 of the Regulations as a ‘full-time registered course’. Registered course’ is defined in rule 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The applicant is a 40 year old male Zambian citizen who first arrived in Australia in August 2014 on the basis of a Vocational Sector Student visa.[8]  The application which is the subject of this review for a Higher Education Sector Student visa to undertake a Master of Business Administration from 28 August 2017 to 23 August 2019.[9] The applicant’s evidence indicates that he is not currently enrolled in a registered course of study. The Tribunal does not have any evidence before it that the applicant is currently enrolled in a registered course of study as required by the Act and Regulations.

    [8]           See delegate’s decision.

    [9]           See delegate’s decision.

23. The delegate’s decision refers to a history of the applicant having cancelled enrolments and significant periods of breaching the enrolment condition of his student visa (for a period of five months from November 2014 to April 2015 and a further period of sixteen months from April 2016 to August 2017).  This is of serious concern for the Tribunal.  The delegate’s decision also indicates the proposed study was due for completion on 23 August 2019.  Due to delays in this matter coming before the Tribunal, this date has now passed and the applicant ought to have completed his proposed study.  Any confirmation of enrolment would now have expired and there is no current confirmation of enrolment for this or any other course presently before the Tribunal.

24. The s359(2) letter dated 20 September 2019, makes several enquiries about enrolment in a registered course of study and current confirmation of enrolment 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.’

25. 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.”

26. The applicant has not responded to the s359(2) letter and the Tribunal therefore has no evidence in favour of the applicant in relation to these requests.

27. In the applicant’s evidence presently before the Tribunal, there is no current confirmation of enrolment.  The Tribunal considers that the determinative issue in the applicant’s case has changed as a current confirmation of enrolment has not been provided.  It is the applicant’s responsibility to ensure he is complying with the conditions of his visa at all times. 

28. 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). The applicant has had an adequate opportunity to obtain such evidence and he has failed to do so. 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.

29. 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.

    CONCLUSIONS

30. Therefore, the Tribunal is not satisfied that at the time of its decision, the applicant is enrolled in a course of study and accordingly clause 500.211 of the Regulations is not met.

31. 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

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

    T. Quinn

    Member