POMSUWAN (Migration)

[2020] AATA 2946

POMSUWAN (Migration) [2020] AATA 2946 (25 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss. Chongkon POMSUWAN

CASE NUMBER:  1834352

HOME AFFAIRS REFERENCE(S):          BCC2018/3550204

MEMBER:P. Adami

DATE:25 April 2020

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 25 April 2020 at 11:30am

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, r 1.03; Schedule 2 cls 500.211, 500.212

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 13 November 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 September 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.

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 applicant genuinely intends to stay temporarily in Australia as a full time student.

4. On 9 April 2020, the Tribunal formally wrote to the review applicant pursuant to section 359(2) of the Act, inviting the applicant to provide further information to the Tribunal, including information as to her enrolment.

5. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the review applicant’s nominated email address, being the email address provided by the review applicant in connection with her 22 November 2018 application for review.

6. On 23 April 2020, the applicant filed a completed Request for Student Information with the Tribunal. In her completed Request for Student Visa Information, in the section headed ‘Hearing information’, the applicant 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 note that a decision maker is not required to make the applicant’s case. It is for the 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 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 applicant to the Department.

9. For the following reasons, the Tribunal has concluded that the decision 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. In her filed completed Request for Student Visa Information, in the section headed ‘Information about enrolment and study in Australia’ to the question “Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?”, the applicant answered “Yes”. In the same section of the form, the applicant is asked to “Please give details of all courses that the Main Applicant has been ENROLLED in while in Australia. Please include any:

    • cancelled enrolments
    • courses successfully completed
    • current or future enrolments”

    The applicant lists that she has enrolled in 9 courses since June 2014.

14. More recent enrolments listed by the applicant include a Certificate IV of Accounting with a course start date of September 2018 and a course end date of September 2019 which she answers that she “Did not complete”. The applicant then lists a Diploma of Accounting with a course start date of September 2019 and a course end date of September 2020 which she answers that she “Did not complete”. The most recent enrolment listed by the applicant is the Advanced Diploma of Accounting which she answers that she “Never started”. The delegate in their decision states that the Advanced Diploma course would result in the applicant studying in Australia “until at least September 2021”. These 3 courses appear to be a packaged course as they each have an enrolment date of August 2018 and are all to be provided by the Crown Institute of Business and Technology. The Tribunal notes that the applicant did not select the ‘Studying now’ option to describe the expected currently enrolled Diploma of Accounting course which covers September 2019 to September 2020.

15. The Tribunal considers that cogent evidence of a current enrolment must be presented before it can conclude that the applicant is currently enrolled in a registered course of course of study for the purposes of cl.500.211. The Tribunal considers that little weight can be given to the applicant stating she has a current COE as per her Request for Student Visa Information, or her intention to study as per her undated Genuine Temporary Entrant (GTE) Statement on the Department file (df33-36), in the absence of any corroborative and timely 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 her November 2018 application for review. The Tribunal considers that the applicant’s answer about her expected currently enrolled course where she lists she “Did not complete” rather than ‘Studying now’ also weighs against a conclusion that the applicant is currently enrolled and studying. The Tribunal is mindful that the applicant in her completed Request for Student Visa Information under the heading ‘Document upload’ was “Do you want to provide any additional documents now?” to which she answered “No”.

16. The Tribunal considers that the applicant might have filed a current COE and Academic Transcript or Statement of Results issued to her for her completed and currently enrolled studies, or she might have filed a letter from Crown Institute of Business and Technology confirming her current enrolment in the Diploma of Accounting. The applicant in her April 2020 completed Request for Student Visa Information lists her most recent completed course as an Advanced Diploma of Business in August 2018 at the Berkeley Business Institute. Other than filing the Request for Student Visa Information in with the Tribunal, the Tribunal considers that it has not been assisted by the applicant so that it might readily conclude the applicant is currently enrolled in a course of study as required by cl.500.211.

17. The Tribunal considers that presently there is no recent and cogent evidence before it to be satisfied that the 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 applicant does not claim to meet the criteria for a Subclass 500 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

19. P. Adami

    
    

    Member