NANDU (Migration)

[2020] AATA 946

NANDU (Migration) [2020] AATA 946 (24 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sai Kiran Reddy NANDU

CASE NUMBER:  1813362

HOME AFFAIRS REFERENCE(S):          BCC2018/1156026

MEMBER:Amanda Pearson

DATE:24 March 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 24 March 2020 at 2:41pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no response to s359(2) invitation – not entitled to appear before the Tribunal – enrolment status – no evidence of enrolment – postponement of determination not appropriate – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.The Applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 May 2018 refusing to grant him a student visa.

2.The Applicant applied for the visa on 11 March 2018. The specific type of visa he applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as being a Student (Temporary) (Class TU) (Subclass 500) visa.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of section 65 of the Migration Act 1958 (Cth) (‘the Act’). If granted, a student visa permits a non-Australian citizen to enter and remain in Australia to study full-time on a temporary basis.

[1] Migration Regulations 1994 (Cth), Sch 1, cl 1222; Sch 2, cls 500.1 to 590.612.

3.In this case there is only one applicant. He seeks a student visa so that he can reside in Australia while undertaking a course of study. For the visa to be granted, the Applicant must meet the primary criteria set out in Part 500 of Schedule 2 of the Regulations.[2]

[2] Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

4.The student visa was refused in this case because the delegate found that the Applicant did not satisfy the primary criteria contained in cl 500.212 of Schedule 2 of the Regulations. The delegate was not satisfied that he was a genuine applicant for entry and stay as a student. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Tribunal by the Applicant when he lodged his review application on 9 May 2018.

DETERMINATION OF APPLICATION WITHOUT HEARING

5.It has now been almost 2 years since the Applicant lodged his review application. In coming to consider the merits of his case, the Tribunal recognises that the Applicant’s personal circumstances 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 application.

6.To this end, by letter dated 7 November 2019 the Tribunal wrote to the Applicant inviting him pursuant to s 359(2) of the Act to provide information that could assist the Tribunal in determining his application (‘the Tribunal’s s 359(2) request’). The Tribunal’s s 359(2) request included a questionnaire that specifically invited the Applicant to provide information about his personal circumstances, including information about:

·his education history overseas;

·his education history in Australia;

·his current course enrolments in Australia;

·previous Australian visa applications he has made;

·his immigration history in Australia and in other countries;

·his work experience in Australia and in other countries;

·his living expenses in Australia;

·his family;

·his property and assets;

·his plans, including job plans, once he completes his proposed course of study; and

·concerns he may have about military service commitments, or political or civil unrest in his home country.

7.The Tribunal’s s 359(2) request was sent to the last known address provided to the Tribunal by the Applicant in connection with the present review. The Applicant was advised that if the requested information was not provided in writing by the prescribed period (ie, within 14 days following receipt of the request),[3] the Tribunal may proceed to make a decision without taking further steps to obtain the information. The Tribunal further advised that a failure to provide the requested information would result in the Applicant losing any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

[3] See Migration Regulations 1994 (Cth), reg 4.17(4)(b)(i).

8.The Applicant did not respond to the Tribunal’s s 359(2) request by the specified deadline of 21 November 2019. He has not requested an extension of time to provide the information requested. The Tribunal therefore has no additional information beyond that which was before the delegate and which is otherwise discernible from the delegate’s decision.

9.By the operation of s 359C and 360 of the Act, in circumstances where the Tribunal has invited the Applicant to provide information pursuant to s 359(2), and the Applicant has failed to do so within the prescribed period, the Tribunal may proceed to determine the review application in his absence. Furthermore, the effect of s 363A of the Act is that the Applicant has no entitlement to a hearing and the Tribunal has no power to permit him to appear.[4]

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

10.The Tribunal has decided to determine this application having regard to all the information before it. This includes the information that was previously provided by the Applicant to the delegate and information that may be discerned from the delegate’s decision itself.

11.For the following reasons, the Tribunal has decided to affirm the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

12.Clauses 500.211 to 500.218 of Sch 2 of the Regulations contain the primary criteria relating to the grant of Subclass 500 student visas. In this case, only cl 500.211 (the enrolment criterion) and cl 500.212 (the genuine applicant criterion) are relevant for determining the outcome of the review application. Whether an applicant satisfies the criteria is to be determined at the time the Tribunal’s decision is made.[5]

[5] Migration Regulations 1994 (Cth), Sch 2, cl 500.2.

Enrolment Criterion

13.For the purposes of the application on review before the Tribunal, cl 500.211 requires that a student visa application be founded on evidence of the applicant being enrolled in ‘a course of study’.[6] A ‘course of study’ is defined as ‘a full-time registered course of study.’[7] A ‘registered course’ is one which is provided by an institution which has been registered under the Education Services for Overseas Students Act 2000 (Cth) (‘ESOS Act’) to provide that course to overseas students.[8]

[6] Migration Regulations 1994 (Cth), Sch 2, cl 500.211(a). The present case is not advanced on the basis that the Applicant satisfies any of the other criteria contained in cls 500.211(b), (c) and (d).

[7] Migration Regulations 1994 (Cth), reg 1.03.

[8] Migration Regulations 1994 (Cth), reg 1.03.

14.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.[9] 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.[10] 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 will enter 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 cl 500.211 of Sch 2 of the Regulations.

[9] Education Services for Overseas Students Act 2000 (Cth), s 10.

[10] See generally Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018)

Importance of Current Enrolment

15.Producing evidence of a 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. Secondly, it obliges the applicant to pay for the course. Thirdly, 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 demonstrates a present and operating commitment on the part of the applicant to complete a course of study. It represents a tangible and immediate need for a student visa.

16.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.[11] 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.

[11] Migration Regulations 1994 (Cth), Schedule 2, cl 500.611(1)(a); Schedule 8, Condition 8202(2)(a).

17.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 granted. Indeed, consideration of whether the primary criteria are met, as contained in cls 500.212 to 500.218, is premised on the enrolment criterion in clause 500.211 being met. If cl 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.

Applicant Not Currently Enrolled

18.In this case, the Tribunal cannot be satisfied that the Applicant is currently enrolled in a registered course of study. As the delegate’s decision record indicates, when the delegate came to consider the merits of the original visa application there was one enrolment produced that demonstrated the criteria in cl 500.211 were satisfied. The difficulty for the Tribunal in coming to determine the matter now is that it has been more than 2 years since that information was before the delegate. The information is out of date. More importantly, the finishing date of the last course has well and truly passed.

19.The Tribunal has contemplated events that may have transpired since that time. The Applicant may have completed the courses. Alternatively, he may not have completed them. He may be enrolled in another course or he may not be enrolled in anything at all. In the absence of any updated information that could have been provided by the Applicant in response to the Tribunal’s s 359(2) request, there are many possible scenarios that may be contemplated.

20.The Tribunal does not consider it appropriate to engage in such speculation for the purposes determining whether the criteria contained in cl 500.211 are satisfied. Cogent evidence of a current enrolment must be presented to the Tribunal before it can make a finding that the Applicant is currently enrolled in a registered course of course of study for the purposes of cl 500.211. There is presently no such evidence before the Tribunal.

Not Appropriate for Tribunal to Postpone Determination

21.The Tribunal has considered the possibility of postponing the determination of the present application on review and writing to the Applicant, again pursuant to s 359(2) of the Act, to request further information from him. Such a request would be specifically designed to invite the Applicant to produce satisfactory evidence of a current enrolment.

22.After considering this possible course, the Tribunal has decided against it. The Tribunal considers it would not be appropriate to do so because it has already requested that information by its original s 359(2) request dated 7 November 2019. The Applicant did not respond to this request. To write to the Applicant again would frustrate the purposes of the Act. Division 5 of Part 5 of the Act (ss 357A to 367) was intended by the Parliament to constitute an exhaustive statement of the principles of natural justice in relation to the matters it deals with.[12] The Tribunal’s original s 359(2) request was designed to elicit evidence of enrolment if any such evidence existed. The scheme of this part of the Act is designed to balance the interests of applicants in being able to make their case to the Tribunal as against the public interest in having the Tribunal determine matters that come before it expeditiously and without undue delay.

[12] Migration Act 1958 (Cth), s 357A.

23.The Tribunal has already afforded the Applicant an opportunity to produce satisfactory evidence of a current enrolment pursuant to s 359(2) of the Act. To provide him with another such opportunity, because he did not respond to the original request, cannot be justified. The Tribunal must now move to make a determination based on the information before it.

Conclusion

24.Based on the material before the Tribunal, the Tribunal is not satisfied that the Applicant is currently enrolled in a registered course of study for the purposes of cl 500.211 of Schedule 2 of the Regulations.

Genuine Applicant Criterion

25.In the circumstances, the question of whether the Applicant meets the criteria under clause 500.211 has become determinative for the purposes of the outcome of the case now before the Tribunal. If the Applicant does not meet the criteria under the clause 500.211, there is no administrative utility in the Tribunal proceeding to consider whether the genuine applicant criterion is met under clause 500.212.

Conclusion

1. The Applicant does not meet the regulatory requirements for the grant of a student visa because the Tribunal is not satisfied that the material before it establishes that he meets any of the criteria contained in cl 500.211 of the Regulations.

   DECISION

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

   Amanda Pearson
   Member