OSORIO MERCHAN (Migration)
[2020] AATA 2815
•22 May 2020
OSORIO MERCHAN (Migration) [2020] AATA 2815 (22 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Caterin OSORIO MERCHAN
CASE NUMBER: 1836048
HOME AFFAIRS REFERENCE(S): BCC2018/3151028
MEMBER:Mark Bishop
DATE:22 May 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 22 May 2020 at 12:55pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– applicant failed to provide the requested information – genuine temporary entrant criterion not met–no current confirmation of enrolment– not appropriate for Tribunal to postpone determination – decision under review affirmedLEGISLATION
Migration Act 1958, ss 65, 359, 360, 363, 499
Migration Regulations 1994, r 1.03, Schedule 2, cl 500.211Education Services for Overseas Students Act 2000
CASES
Hasran v MIAC [2010] FCAFC 40
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 1Yang v MIAC [2-010] FMCA 890
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 November 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 21 August 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.
Almost 18 months have elapsed since the lodging of the the applicant’s application for review with the Tribunal and 19 months since the making of the delegate’s decision. 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.
In this case the Tribunal formally wrote to the review applicant pursuant to s.359(2) of the Act inviting the review applicant to provide further information to the Tribunal, including information in relation to enrolment: cl.500.211(a).
The Tribunal did not receive any response to the before mentioned written invitation within time. The applicant responded to the s.359(2) out of time.
The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under s.359(2) of the Act. The invitation was sent to the review applicant’s nominated address, being an address provided by the review applicant in connection with this application for review.
As the applicant failed to respond within the prescribed period, s.359C(1) applies and pursuant to s.360(3), 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 them to appear see Hasran v MIAC [2010] FCAFC 40 at [26]; Yang v MIAC [2-010] FMCA 890 at [40].
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.
The Tribunal has given consideration to whether it should adjourn the review under s.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 [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 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 [2013] HCA18 (8 May 2013) regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC (4 February 2014) which considered analogous issues, as well as the recent decision of Kaur v Minister for Immigration and Border Protection [2014 FCA 915 (28 August 2014).
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.
Accordingly, the Tribunal has decided not to exercise its discretion under s.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 review applicant to the Department.
Ultimately, a decision maker is not required to make the review applicant’s case. It is for the review 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 review applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Enrolment (cl.500.211)
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.
‘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.
Clause 500.211 provides:
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.
In her written response to the s.359(2) Request for Information the applicant declared she had not completed her enrolment in a Diploma of Community Services and does not have a current Confirmation of Enrolment (COE) in a registered course of study.
Significance of Enrolment Criterion
Producing evidence of 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. Second, it obliges the applicant to pay for the course. Third, 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 represents a present and operating commitment by the applicant to complete a course of study. It is persuasive evidence of a tangible and immediate need for a student visa.
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 remains enrolled in a registered course of study. 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.
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 grated. Indeed, in any case for a student visa, consideration of whether all other primary criteria are met, as contained in clauses 500.211-500.218 of the Regulations, is premised on the enrolment criterion in clause 500.211 first being satisfied. If clause 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.
As outlined in paragraph 4 above on 9 April 2020 the Tribunal forwarded to the applicant a “Request for Student Visa Information under s.359 (2) of the Migration Act 1958”. The Tribunal asked the applicant if she had a “current Confirmation of Enrolment in a registered course of study”. The Tribunal informed the applicant in writing “not being enrolled in a registered course of study may be a reason, or part of a 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”.
The Tribunal is of the view the applicant was in receipt of written notice that in the review application the determinative issue was proof of enrolment in an approved course of study.
The applicant responded out of time to the request for information made under s.359(2) of the Act. The applicant consented to the Tribunal deciding the review without a hearing. The applicant provided updated information to the Tribunal. The applicant advised the Tribunal she last completed a course of study in June 2018 and did not complete any courses of study after that date.
Critically the applicant advised the Tribunal she was not currently enrolled in a course of study.
Not Appropriate for Tribunal to Postpose Determination
The Tribunal has considered whether postponing the determination of the present application for review is appropriate and whether it should write to the applicant, again pursuant to section 359(2) of the act, to request information from the applicant. Such a request would be specifically designed to invite the applicant to produce satisfactory evidence of a current enrolment given that they have produced none to date. After considering this possible course, the Tribunal has decided against it. The Tribunal considers it would not be appropriate to do so for a variety of reasons as set out below.
Firstly, the Tribunal considers that the applicant has had sufficient time and notice to arrange and produce clear evidence of a current enrolment for the purposes of their application before the Tribunal. The applicant has not provided such evidence when they could have done so.
Secondly, while the Tribunal may have a general duty to inquire, its role is not to advise and advocate for a particular outcome. If the Tribunal were to write to the applicant, specifically requesting that he provide further evidence of a current enrolment, implicit in that request would be advice that the applicant’s case as it stands is deficient. It would also suggest that the deficiency is capable of being remedied if the applicant were to take certain affirmative action. In effect, the Tribunal would be assisting the applicant to bolster their case to increase their chances of obtaining a favourable outcome. That is essentially the role of an advocate. It is not a proper or appropriate function for this Tribunal.
Thirdly, writing to the applicant again would frustrate the purposes of the Act. Division 5 of Part 5 of the Act (section 375A to section 367) was intended by Parliament to constitute an exhaustive statement of the principles of natural justice in relation to the matters it deals with. The Tribunal’s original s359(2) letter was designed to elicit evidence of enrolment if any such evidence existed. The applicant did not respond and has not met the requirements of clause 500.211 of the Regulations. In doing this, the applicant also caused the Act to operate to preclude them from any further hearing. 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. The Tribunal has already afforded the applicant an opportunity to produce satisfactory evidence of a current enrolment pursuant to s359(2) of the Act. To provide the applicant with another such opportunity because what they produced was unsatisfactory cannot be justified.
Conclusion on Enrolment
The only information, material or documents before the Tribunal are the information, material or documents previously provided to the Department, the out of time s.359(2) written response and the decision record. The Tribunal has considered all that material.
As outlined in paragraph 18 the applicant is not currently enrolled in a course of study.
The Tribunal has carefully considered the delegate’s decision record dated 19 November 2018 a copy of which was provided to the Tribunal by the review applicant with the application for review.
Despite requests the applicant has not provided a copy of a current COE or any form of proof of enrolment in an approved course to the Tribunal.
Crucially however, the Tribunal does not have before it current evidence that the review applicant is presently enrolled in a course of study as required by cl.500.211(a). It follows that the Tribunal is not satisfied that the review applicant is presently enrolled in a course of study as required by cl.500.211(a).
Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Mark Bishop
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Jurisdiction
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