Roka (Migration)

[2019] AATA 1434

Roka (Migration) [2019] AATA 1434 (30 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sunil Roka

CASE NUMBER:  1717329

HOME AFFAIRS REFERENCE(S):           BCC2017/1029467

MEMBER:Michael Bradford

DATE:30 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 30 April 2019 at 11:53am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment status – current Confirmation of Enrolment – not the only way to establish enrolment – credibility issues – lack of corroborative documents – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.211

STATEMENT OF DECISION AND REASONS

Background, procedural and evidentiary aspects

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 2 August 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 15 March 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 meet the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he was not a genuine temporary student.

4. Having been duly notified of that decision, the applicant lodged his review application on 8 August 2017, this being within the prescribed period of 21 days.

5. On 19 February 2019 the Tribunal sent to the applicant a Sec 359(2) letter inviting him to provide information on the course or courses of study he was undertaking and on his entry and stay in Australia as a temporary student.

6. Information on those matters was received by the Tribunal on 5 March 2019 in the online response form and in the additional documents identified in the form, namely a letter from the applicant dated 4 March 2019, a Confirmation of Enrolment (COE) and an unsigned and undated Conditional Letter of Offer.

7. The applicant conceded in his online form that he did not have a current COE and that the COE referred to in that form was for a Master of Business and Project Management at the Asia Pacific International College (APIC). This course, which ran from 14 March 2017 to15 June 2018 (the first APIC course), has been partly completed by the applicant in circumstances to be outlined in more detail below. The Conditional Letter of Offer is also from APIC for the same or a similar course and is to run from 17 June 2019 to 28 May 2021 (the second APIC course).   

8. On 14 March 2019 the applicant was invited by letter to attend the hearing set down for 29 March of this year. In this letter he was also asked to provide among other documents a copy of a current COE or other documents showing that he was currently enrolled in a course of study.

9. The hearing took place on 29 March 2019 when the applicant appeared in person to give evidence and present his case. He provided to the Tribunal some additional documents shortly before the hearing commenced, these being another copy of the Conditional Letter of Offer signed by him and dated 5 March 2019, a Tax Invoice relating to that offer issued by APIC on the same date, and an Enrolment Form 2014 from Global English College.  

10. Also, later during the course of his oral evidence he made available to the Tribunal a Study Plan from APIC signed and dated 5 March 2018. This document contains a plan of study for the second APIC course, apparently, and records the units he would have to complete to gain the qualification offered for that course. 

11. At the end of the hearing, after a fairly long discussion with the applicant about the Tribunal’s concerns in relation to his enrolment status and about what documents he would need to provide to the Tribunal to satisfy it that he was in fact currently enrolled in the second APIC course, the Tribunal gave him the opportunity to provide certain further documents in order to establish that he was in fact currently enrolled in that course. In so doing, the Tribunal identified in general terms the documents it was looking for, why they were required and it gave him until 5pm on 12 April 2019 to provide them. The applicant informed the Tribunal that he would do so within that period.  

12. At the end of the hearing, the Tribunal was satisfied that the applicant was on notice that unless those or other documents were duly provided he could not expect from the Tribunal a favourable finding on the issue of enrolment.

13. On 12 April 2019 at 3.49 pm the applicant sent an email to the Tribunal attaching some additional documents, namely a Statement of Account for a course at APIC which is described as a Master of Business Management and an Academic Transcript relating to that course. These documents establish clearly enough that the applicant had in fact completed most of the units in that course when, according to his oral evidence, he decided to take a break from study and that he has paid fees for that course in the order of $25,850.

14. The Tribunal notes that the course identified in these additional documents appears to be the same course earlier described in these reasons as the first APIC course.

15. In the 12 April email the applicant says that he was in the process of obtaining what the Tribunal understands from a reading of the email to be a COE for the second APIC course. Although he goes on to say in the email that this may take a few more days to organise, no further documents have been received from him, nor has he made any other contact with the Tribunal. If this email contains an express or implied request from the applicant for further time, for reasons to be given shortly the Tribunal does not accede to this request.   

16. In these circumstances, the Tribunal also observes that it is not bound to make out a case for the applicant on the issue of whether he is in fact currently enrolled in the second APIC course and that he has at least a forensic interest, if not an evidentiary obligation, to provide information to the Tribunal to support his case on the issues which the Tribunal has identified well in advance of the hearing and, in this case, at the hearing. Moreover, as the applicant has been given an adequate opportunity to provide a current COE and/or other documents by which to establish that he is currently enrolled in the second APIC course, or in some other registered course, the Tribunal is entitled to make a decision on this review application without making any further enquiries, to act on the basis of the information and evidence which it has and to draw whatever inferences are open to it arising from the applicant’s failure to provide requested documents or information in a timely fashion or at all.

17. The Tribunal particularly notes that the applicant in this case was consistently on notice of the need to address the issue of his enrolment, and what was expected from him in the way of providing documents relating to that issue, as early as 19 February of this year.

    The issue on the review application

18. The issue on this review application is whether the applicant meets the criteria for a Subclass 500 (student) visa as set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clauses 500.211 to 500.218 inclusive in that Part must be satisfied by the applicant, insofar as they apply to him and his circumstances.

19. Among those criteria is the requirement in clause 500.211(a) that the applicant be enrolled in a registered course of study at the time of this decision. The applicant does not appear to meet, and does not claim to meet, any of the alternative criteria in clause 500.211.

20. Enrolment at that time in a registered course of study, as that term is defined in r 1.03 of the Regulations, is a mandatory requirement for the grant of a Student Class TU (subclass 500) visa. The Tribunal has clearly put the applicant on notice of this requirement and, in the events which have occurred, regards it to be the threshold and determinative issue on this application. 

21. ‘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.

22. Whether an applicant is currently enrolled in a registered course of study is of course a factual issue. Although in many applications the issue can be resolved favourably to an applicant on the basis of a current COE, this is not the only way an enrolment in a registered course of study can be satisfactorily established. In an appropriate case other documents may be available on which the Tribunal can find or infer that the applicant is in fact currently enrolled in a registered course of study. That said, it will be an unusual case where the Tribunal can safely act on the bare and self-serving assertions of an applicant on this kind of issue. Corroborative material may not be a legal requirement in these cases but, as a matter of practical reality, the Tribunal needs to be cautious about accepting what an applicant says on the issue of whether or not he is currently enrolled without having any independent documentary or other objectively verifiable evidence to support it.

    Particularly will this be so in circumstances where, as in this case, the Tribunal has concerns about the credibility of the applicant and/or the reliability of this and other aspects of his oral evidence viewed in the light of the contemporaneous documentary evidence.

    The Delegate’s decision

23. The delegate accepted that the applicant was enrolled in the first APIC course at the time of its decision and it therefore made a decision on the visa application by considering whether he was at that time a genuine temporary entrant, as required by clause 500.212 of the Regulations (the GTE issue).

24. The delegate was not satisfied that the applicant met that requirement and accordingly refused to grant him the visa.

25. For the reasons which follow, the Tribunal has concluded that the delegate’s decision must be affirmed but on the basis that the applicant has not satisfied the Tribunal that he is, at the time of the Tribunal’s decision, enrolled in the second APIC course.

26. This being so, it will be unnecessary for the Tribunal to make any findings on the GTE issue.

    Evidence relating to and findings on the applicant’s current enrolment status

27. At the outset the Tribunal notes that the applicant was an unconvincing and in some respects an unsatisfactory witness. He had difficulty in the course of his evidence answering fairly simple questions about his enrolment in the two APIC courses, matters on which the Tribunal expected he would have a fairly good recollection of given the circumstances in which the first APIC course came to an end and the second APIC course came under consideration. On too many occasions he gave what the Tribunal regarded to be unresponsive answers, was asked to focus on questions more than once while, at other times, the need for long pauses before answers were given was perplexing.

28. Although allowances must be made by the Tribunal for cultural differences and the possibility of language deficits coming into play, for reasons to be elaborated on shortly, the Tribunal is not willing in this case to act on the basis of the applicant’s oral evidence unless that evidence is independently corroborated by the documentary material, consistent with other proved objective features of the case or is against his interest.

29. In his letter to the Tribunal of 4 March 2019 the applicant explained why he did not complete the first APIC course. He states in the letter that he had almost completed that course when he decided to take a break from study because he was emotionally exhausted and that when he tried to resume his studies in March 2018 he was told by APIC that the course was no longer available and that he would have to enrol in the second APIC course.  

30. Part of that evidence, at least, is corroborated by the Study Plan referred to earlier which indicates that the applicant was yet to complete core unit SBM 2106, this being one of the units identified in the Academic Transcript relating to the first APIC course as having not been satisfactorily completed in Semester 1 of 2018.  

31. According to that Transcript, the applicant had in fact completed a total of 7 units in that course over 3 semesters during the 2017 and 2018 calendar years before he ceased to attend classes in that course.

32. The Tribunal notes that the Academic Transcript was issued by APIC on 9 April of this year and that it was apparently obtained by the applicant in purported response to the Tribunal’s request for additional documents. 

33. The Tribunal thus accepts that these documents, taken in conjunction with the Study Plan, confirms what the applicant stated in his oral evidence, namely that in March 2018 APIC had agreed to give him full credit for the subjects he had already completed in the first APIC course and that he would have only 3 units to undertake in the second APIC course, namely SBM 2106 and two elective subjects.

34. Be that as it may, none of that evidence establishes what the applicant needs to demonstrate in relation to his enrolment status, namely that he is in fact currently enrolled in the second APIC course.

35. At the hearing the Tribunal asked him more than once whether he had in fact returned the signed Conditional Letter of Offer to APIC and, if so, whether he had made any payment to APIC in accordance with the terms of that offer and in response to the Invoice. In response to these questions, after some long pauses and what the Tribunal considers to have been some prevarication on his part, the applicant said that he had returned the Conditional Letter of Offer to APIC together with the sum of $6,872 but later changed his evidence on this and said that the money was given to his agent, presumably for on-sending to APIC. When pressed on this, he went on to say that he had been given a receipt from the agent for the money by email but, when asked to provide it, said he could not do so, or at least not immediately.

36. Apart from the unsatisfactory nature of this evidence, particularly when considered in the light of the earlier requests from the Tribunal for relevant documents relating to this very issue to be provided in a timely fashion, the applicant was unable to explain why it is that he had sent the money to his agent in the first place, apart from saying that he believed the agent would look after him. As was pointed out to him at the hearing, the APIC offer is addressed to him, not to his agent. The Tribunal regards this evidence to have been somewhat disingenuous.

37. The Tribunal then went to some lengths to explain to the applicant why it was important for him to make the documents available to the Tribunal and what they should consist of so as to establish that he has in fact accepted the offer from APIC in accordance with its terms.  

38. The Tribunal notes that these documents, and there are not many of them, were identified for the applicant at the hearing and they would be, in all likelihood, quite readily obtainable in the event that he did not already have them in his possession or control. Apart from the agent’s receipt for the initial tuition fee, these documents were to include a receipt from APIC for the tuition fees which the agent is said to have paid.

39. The applicant assured the Tribunal towards the end of his oral evidence that he would be able to obtain those documents within the 14 day period allowed for that purpose.

40. Apart from the documents referred to in paragraph 13 of these reasons, and despite having indicated to the Tribunal in the course of his evidence that he would duly provide the requested material, the applicant has not done so, has not adequately explained why he has not done so and, more particularly, has not provided the COE referred to in his 12 April email or given any definite indication to the Tribunal just when it is that he will be able to provide it.

41. The Tribunal does not regard this to be at all satisfactory. The applicant’s rather glib statement in the email that a COE “might take a few more days to organise” is unacceptable in circumstances where, firstly, he has not provided any other documents which could have readily established a current enrolment in the second APIC course and, secondly, has given no explanation for not having done so.     

42. Whilst allowances should be made for the fact that the applicant is unrepresented, the Tribunal can in these circumstances have little confidence that he would in fact provide a current COE for that course, or any of the other documents which could resolve the issue, if given further time.

43. In circumstances where the applicant has already been given ample opportunity to provide the necessary information, the Tribunal sees no real utility in granting him any further time.   

    Conclusion on the enrolment issue

44. The Tribunal is thus unable to find for the applicant on the enrolment issue and, consequently, must find that he does not meet the mandatory requirement in clause 500.211(a) as he is not enrolled in the second APIC course, or in any other registered  course of study at the time of this decision.

45. Given that finding, the Tribunal concludes that the criteria for the grant of a Subclass 500 (Student) visa are not met in this case. As the applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa, the decision under review must be affirmed.

    DECISION

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

    Michael Bradford
    Member