Singh (Migration)

[2020] AATA 1984

Singh (Migration) [2020] AATA 1984 (4 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karanbir Singh

CASE NUMBER:  1901549

DIBP REFERENCE(S):  BCC2016/2774768

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         4 June 2020 at 3:39 pm (VIC time)

DATE OF WRITTEN RECORD:                12 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 12 June 2020 at 2:50pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit Court remittal – enrolment status – Australian PRISMS database search – evidence of current enrolment – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 March 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 4 June 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral statement of the decision and reasons of the Administrative Appeals Tribunal in case number 1901549 in the case of Karanbir Singh.  He is a citizen of India and is 35 years old.

4. He seeks review of a decision made by a delegate of the Minster refusing to grant him a student visa.  He applied for this visa on 22 August 2016.  The visa application was refused by the delegate on 9 March 2017.  He lodged his review application with the tribunal on 23 March 2017.

5. For the visa to be granted he must meet the primary criteria set out in Part 500 of Schedule 2 of the Regulations.

6. The visa was initially refused by the delegate because the delegate found that he was not a genuine applicant in accordance with clause 500.212.  Those reasons of the delegate were set out in a Decision Record which was provided to the applicant upon notice of the decision being given.  He also provided a copy of that Decision Record when he lodged his review application with the tribunal.

7. Now the review application was first heard by the tribunal on 31 May 2018, which was then constituted by Member Edgoose.  At that time, it had been designated a different case number, being case number 1705749.  The tribunal made a determination in relation to the case on the same day.  Member Edgoose affirmed the primary decision, not because Member Edgoose found that he was not genuine, but because Member Edgoose found that the applicant did not meet the enrolment criterion at the time he made his decision.

8. The applicant then applied for review of Member Edgoose’s decision to the Federal Circuit Court of Australia.  That application for review was ultimately found by the court to be in the applicant’s favour.  So on 16 January 2019, the court remitted the application for review of the delegate’s decision back to the tribunal for reconsideration.  That is because the court found that the tribunal, constituted then by Member Edgoose, had failed to consider relevant evidence that could have suggested the applicant was actually enrolled in a course of study.  So the court found that this failure to consider the relevant evidence amounted to a jurisdictional error and so the court declared that Member Edgoose’s decision was invalid.

9. As a result of that invalidation, the tribunal now reconstituted by myself, comes to reconsider the review application afresh.

10. The issues for consideration are firstly whether the applicant is enrolled in accordance with clause 500.211, and secondly whether the applicant is a genuine applicant in accordance with clause 500.212.  The hearing was convened on 4 June 2020 to consider the merits of this application.  The applicant participated by phone to give evidence and present arguments.  And prior to the hearing, the tribunal arranged for the tribunal Registry staff to conduct an up to date search of the PRISMS database because any information pertaining to the applicant’s enrolment status when this matter was first heard before Member Edgoose, back on 31 May 2018, would now be completely out of date, and so an up to date record check of the Australian PRISMS database was required.

11. And so that report from the Australian government’s PRISMS database was obtained and it disclosed that the applicant was not currently enrolled, as of 3 June 2020 at 2.04 pm, the applicant appears not to be enrolled in any registered course of study at all.  That record discloses that the last enrolment that the applicant had was an Advanced Diploma of Business and that enrolment was cancelled on 31 May 2018.  So, since that date, the applicant appears, from this PRISMS database record, not to have been enrolled in any registered course of study.

12. Now this is information that has been obtained from a source other than the applicant himself. So pursuant to section 359AA of the Migration Act, the tribunal orally gave particulars of that information to the applicant in the course of the hearing. And so the tribunal, outlining that information obtained, made it clear to the applicant that this information indicated that he was not currently enrolled in a registered course of study. And further, that if the tribunal were to rely on this information, it would lead to a conclusion most likely that he is not currently enrolled, and therefore he does not meet the enrolment criterion under clause 500.211 now, for the purposes of his review application, which would ultimately lead to the tribunal affirming the decision for that reason.

13. So the tribunal is satisfied that the applicant understood why it was relevant, and so also pursuant to section 359AA the tribunal then invited the applicant orally to respond to or comment on the information, and also made it very clear to him that before he did, if he wished to comment on or respond to that information obtained from the PRISMS database, he was entitled to seek additional time if he wished additional time. The applicant stated that he did not seek additional time and chose to respond to that information immediately.

14. What he said in response to the information provided to him was that, first of all, everything that the tribunal had communicated to him from the database was correct.  So he admitted that he was not currently enrolled.  And he further admitted that his last enrolment was the Advanced Diploma of Business which was effectively cancelled on 31 May 2018.  And he said that he has not been enrolled in anything else since.  And the tribunal asked him why he has not been studying for the last two years and the applicant stated that he has been awaiting the outcome of this review application and suggested that it was up to the tribunal to decide whether or not he would be permitted to study. 

15. The tribunal made it clear to him that it was up to him entirely what he chose to do while he was awaiting the outcome of this matter on his bridging visa, and the tribunal’s role is simply to decide whether or not he meets the criteria for the grant of a visa.

16. He appears to have been under some mistaken misapprehension that he was not allowed to study.  That her was under that misapprehension is a possibility.  But certainly it was made very clear to him about the importance of producing evidence of an enrolment at the tribunal hearing today, for the purposes of meeting the criteria for the grant of a student visa.  And that is because on 19 May 2020 the tribunal, in writing, invited the applicant to attend this hearing, outlining the background of his particular case, and also advised him of what he needed to do by way of preparation for his case today. 

17. In paragraph 4 of that letter the tribunal stated that he needed to provide evidence of a current enrolment, ideally a COE – a Confirmation of Enrolment document – which showed that he was currently enrolled in a course of study in accordance with clause 500.211, and that he needed to produce evidence of this seven days prior to the hearing.

18. Also in paragraph 6 of the invitation letter, the tribunal made it clear that the enrolment criterion would be considered at the hearing.  And so satisfaction of clause 500.211 was explicitly communicated as a consideration for the hearing today.  And so the tribunal has done all it can to give notice to the applicant of the importance of this, yet he has come to this hearing today and chosen not to produce any evidence of an enrolment.  He said that for the last two years he has not been studying.  He has just been working and doing other things, other than study.

19. The tribunal notes that the applicant has not requested any adjournment or postponement of the hearing so that he can obtain such evidence.  In all the circumstances, I am not satisfied that the applicant meets the criteria for the grant of a student visa because there is no evidence before it.  In fact there is evidence to the contrary that suggests he is not currently enrolled.  Therefore, the applicant’s case for a student visa must fail today because he does not meet the criteria contained in clause 500.211.

20. The time now is 3.38 pm on 4 June 2020, in case number 1901549, where the applicant is Karanbir Singh.  The tribunal affirms the decision not to grant the applicant a student temporary class TU subclass 500 visa.

    DECISION

21. The Tribunal affirms the decision under review.

    Dr Jason Harkess
    Member