Naranjo Garcia (Migration)

[2020] AATA 3173

Naranjo Garcia (Migration) [2020] AATA 3173 (24 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr. Sebastian Naranjo Garcia
Ms. Phatsaphorn Phimpru
Master Naranjo Phimpru Dylan

CASE NUMBER:  1923652

HOME AFFAIRS REFERENCE(S):          bcc2019/3325344

MEMBER:P. Adami

DATE:24 June 2020

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 24 June 2020 at 10:24pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – current enrolment – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 65, 359, 360; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212; r 1.03

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 15 August 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 2 July 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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), because the delegate was not satisfied that the primary applicant genuinely intends to stay temporarily in Australia as a full time student.

4. On 21 May 2020, the Tribunal formally emailed the applicants pursuant to section 359(2) of the Act, inviting the applicants to provide further information to the Tribunal, including information as to the primary applicant’s enrolment.

5. The Tribunal is satisfied that the applicants were properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the primary review applicant’s nominated email address, being the email address provided by the review applicant in connection with his 24 August 2019 application for review.

6. On 23 May 2020, the applicants filed with the Tribunal a completed ‘Request for Student Visa Information’. In the completed Request for Student Visa Information, the applicants in the section headed ‘Hearing information’ consented to the Tribunal deciding the review without a hearing. The Tribunal is satisfied that the necessary consent has been given under s360(2)(b) of the Act, and that pursuant to s360(3), the review applicant is no longer entitled to appear before it.

7. It is appropriate to highlight that a decision maker is not required to make the applicants’ case. It is for the applicants 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 applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

8. In these circumstances, the Tribunal has proceeded to make a decision having regard to the information before it, including the information previously provided by the applicants to the Department.

9. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study:

    500.211          One of the following applies:

    (a) the applicant is enrolled in a course of study;

    (b) if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

    (c) if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;

    (d) if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.

12. ‘Course of study’ is relevantly defined in cl.500.111 of 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. The applicant does not claim to meet any of the alternative criteria in cl.500.211.

13. The Tribunal observes that when the applicant applied for the student visa to the Department he confirmed that he was then, a current holder of a Confirmation of Enrolment (COE). The Tribunal notes that the delegate’s 15 August 2019 Decision Record states, “At time of application, the applicant was enrolled to undertake a Certificate IV, Diploma and an Advanced Diploma of Marketing and Communication.” The Tribunal is mindful that the delegate’s Decision Record is now approximately 10.5 months old, and the reference to the enrolments has, without more, lost their timeliness. The Tribunal does not consider this information alone founds a reasonable conclusion that the applicant is now enrolled in a course of study.

14. When the applicants filed the completed Request for Student Visa Information, they also filed a COE issued to the primary applicant for the Advanced Diploma of Leadership at WIC Sydney which had a course end date of 29 March 2020. The applicants also filed a cancelled COE issued to the primary applicant for the Advanced Diploma of Marketing and Communication at Magill College, Sydney. The Advanced Diploma had a proposed course start date of 1 March 2021 and a course end date of 19 August 2022.

15. In the completed Request for Student Visa Information, the primary applicant answers “Yes” where he is asked, “Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?” In the section headed ‘Enrolment and study in Australia’ in the completed Request for Student Visa Information, the primary applicant lists one enrolment being the “Advanced Diploma of Marketing” at Magill College which enrolment status is listed as “Never started”.  The primary applicant does not list any prior or any future enrolments. The Tribunal considers that the listed course is the same course in the cancelled COE given the same institution is listed and the course in the completed Request for Student Visa Information is and advanced diploma and only missing the words “and Communication”. Of course the Advanced Diploma has not been started, given the Advanced Diploma of Marketing and Communication has a course start date of 1 March 2021. The Tribunal notes that the primary applicant does not list the Advanced Diploma as a ‘Future enrolment’.

16. The Tribunal notes that the primary applicant does not give any details about how and why he chose the education provider, or whether there are similar courses in his home country or surrounding region. The applicant does not give any details of contact with family in his home country, or any information about community ties in Australia or his home country. The applicant does not list any property or significant assets owned by him or any information about his future employment plans and how any proposed study will assist them, or any information about remuneration he expects to receive using the qualifications gained from his current or proposed study.

17. Given there is no current COE before the Tribunal, and the lack of information in the 24 May 2020 filed and completed Request for Student Visa Information, the Tribunal considers that the applicant is not currently enrolled in a registered course of study.

18. The applicant might be enrolled in the Advanced Diploma of Leadership or he might be enrolled in some other course, or he might not be enrolled in anything at all. In the absence of any updated information that reasonably could have been provided by the applicant to the Tribunal in response to the Tribunal’s s359(2) request, or at any other time after filing his August 2019 application for review and before this decision, there are many possible scenarios that may be reasonably contemplated.

19. The Tribunal has not concluded its decision on the basis of the above speculation for the purposes of determining whether the criteria contained in cl.500.211 are satisfied. The Tribunal considers that recent and cogent evidence of a current enrolment must be presented to the Tribunal before it can make a finding that the primary applicant is currently enrolled in a registered course of course of study. For example, the applicants might have filed an Academic Transcript or Statement of Results issued to the primary applicant for any currently enrolled studies, or they might have filed a letter from the primary applicant’s current education provider confirming he is currently enrolled.

20. The Tribunal considers that presently there is no recent and cogent evidence before it to be satisfied that the primary applicant is now enrolled in a course of study as required by cl.500.211. As such, the Tribunal cannot be satisfied that the criteria for the grant of a Subclass 500 (Student) visa are met. The primary applicant does not claim to meet the criteria for a Subclass 500 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

21. As the Tribunal has found that the primary applicant does not meet the criterion for the grant of a Student Visa, it must affirm the decision under review that the secondary applicants do not meet cl.500.311, as they are not a member of the family unit of a person who satisfies the primary criteria in cl.500.211. The secondary applicants did not make any claims or provide evidence that they satisfy the primary criteria.

    DECISION

22. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    P. Adami

    
    

    Member