Promketh (Migration)

[2020] AATA 2699

Promketh (Migration) [2020] AATA 2699 (4 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sireepong Promketh

CASE NUMBER:  1726583

HOME AFFAIRS REFERENCE(S):          BCC2017/3052746

MEMBER:David Barker

DATE:4 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 04 June 2020 at 12:56pm

CATCHWORDS
MIGRATION - Student (Temporary) (Class TU) – Subclass 500 – financial capacity – no response to tribunal request for information – no evidence of confirmation of enrolment – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 500.111, 500.214

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 on 17 October 2017 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 24 August 2017. 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.500.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because they were not satisfied that adequate evidence of financial capacity was submitted or uploaded by the time the decision on this application was made by the delegate in October 2017.

4. The applicant was invited to appear before the Tribunal to give evidence and present arguments at a hearing upon 2 April 2020. The Tribunal subsequently cancelled this in-person hearing through the need to minimise the risk of transmission of Coronavirus (COVID-19).

5. The Tribunal exercised its discretion to reschedule a hearing to be heard by telephone on 17 June 2020. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

6. As a result of the Tribunal having information available to it which would provide the reason, or part of the reason for affirming the decision under review, the applicant was, on 20 May 2020, sent a letter pursuant to s.359A and s.359(2) of the Act. This letter explained that comment, response and information the applicant may wish to provide to the Tribunal in response to the letter should be received by 3 June 2020. The letter explained that if he could not provide either the written comments, response, or information by 3 June 2020, the applicant could ask for an extension of time to respond, but that any such a request must be received by 3 June 2020. The letter explained to the applicant that if the Tribunal did not receive any comments, response, information, or a request for an extension of time to respond, by 3 June 2020, he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments, and that the Tribunal may make a decision on the review without taking any further action to obtain his views on the information or to obtain the information. 

7. No response, or request to extend, was received from the applicant by 3 June 2020. In this circumstance the Tribunal finds that through the action of cl.359C(1), cl.360(3) and cl.363A of the Act the applicant has lost his entitlement to a hearing and has proceeded to make a decision on the basis of the evidence before it.

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

   BACKGROUND

9. The applicant is a national of Thailand and is 34 years of age.  The applicant was granted a (Subclass 573) Student visa in December 2012, which was valid until July 2014.

10. As part of the processing of the subclass 500 Student visa application which is the focus of the current review, the applicant was asked by the Department to provide information, including in relation to his financial capacity to support his education and associated living costs. At the time of application the applicant  provided a Letter of Offer regarding intended study at George Brown College, undertaking a Certificate IV in Marketing and Communication from September 2017 to September 2018, followed by a Diploma of Marketing and Communication, running from September 2018 to September 2019.  The applicant did not provide the Department with the requested evidence of his financial capacity and as a result the delegate determined that the applicant had not established that he had genuine access to funds to support his expenses.

11. The particulars of information highlighted in the s.359A letter sent to the applicant were that there is no indication on the Provider Registration and International Student Management System (PRISMS)  that he is currently studying or enrolled in a course. Further to this, the letter explained that the PRISMS records show that:

    ·a General English course in which the applicant was enrolled finished in December 2015;

    ·the applicant's enrolment in a Certificate III in Business, which was to run from February 2016 to February 2017, was cancelled on 1 July 2016 due to his unsatisfactory attendance, with his last recorded date of attendance been recorded as 26 May 2016; 

    ·the applicant's enrolment in a Diploma of Management, which was to run from July 2016 to December 2016, was cancelled due to his non commencement of study;

    ·the applicant's enrolment in a further Certificate III in Business, which was to run from November 2016 to November 2017, was cancelled due to his non-payment of fees, with your last recorded date of attendance been recorded as 28 April 2017; 

    ·the applicant's enrolment in an Advanced Diploma of Management, which was to run from January 2017 to June 2017, was cancelled due to his non commencement of study;

    ·there is no indication on the PRISMS records that the applicant has finished any course of study since December 2015.

12. The s.359A letter explained that undertaking study, or enrolment in a course, is a threshold requirement for the grant of a Subclass 500 Student visa. The applicant was informed in the letter that his lack of enrolment would be a reason for affirming the decision to refuse the Subclass 500 Student visa that is the subject of the current review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

14. The issue before the delegate was whether the applicant met the criterion in cl.500.214. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

15. 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.

16. ‘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.

17. The Tribunal has considered the evidence contained in the Department and Tribunal files. The applicant has not responded to the Tribunal’s invitation to comment on, or respond to the particulars of information in the s.359A letter regarding the PRISMS records of his studies in Australia, or otherwise provide further information in support of his claims. 

18. On the basis of the evidence before it, the Tribunal finds that the applicant is not currently enrolled in a course of study and that he has not completed any courses of study since December 2015. 

19. There is no evidence before the Tribunal that the applicant has a current offer of enrolment in any course.  There is no claim otherwise.   The Tribunal has considered these factors and all the other evidence in the Department and Tribunal files. 

20. As a consequence, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

21. 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

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

    David Barker
    Member