Singh (Migration)

[2019] AATA 4932

Singh (Migration) [2019] AATA 4932 (11 October 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Beant Singh

CASE NUMBER:  1819411

DIBP REFERENCE(S):  BCC2014/753536

MEMBER:  Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:          11 October 2019 at 2:47 pm (VIC time)

DATE OF WRITTEN RECORD:                4 November 2019

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 04 November 2019 at 12:53pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Federal Circuit Court remittal – enrolment status – genuine temporary entrant – adjournment refused – access to file at the AAT – changes to enrolment requirements – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 June 2014 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under the Migration Act 1958 (the Act).

2. At the hearing on 11 October 2019 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 application for review brought by Mr Beant Singh who is a citizen of India in case number 1819411. He seeks review of a decision made by a delegate of the Department of Immigration and Border Protection and that decision was made some time ago, being 30 June 2014 refusing to grant him a student visa.

4. At the time he applied for this visa on 15 March 2014 the regulations that then applied created various subclasses of student visa. The relevant subclass that he applied for was what is known as a 572 vocational sector subclass visa. Those are the relevant provisions which I must apply today.

5. The application was originally refused on the basis that the delegate then was not satisfied that the applicant was a genuine applicant for entry and stay as a student in Australia. As he was entitled to do, the applicant then appealed that decision to the Administrative Appeals Tribunal. The matter came before the Administrative Appeals Tribunal for hearing on 26 November 2014. At that time the tribunal was constituted by Member Mara Moustafine. The tribunal constituted by Mr Member Moustafine conducted a hearing and ultimately after consideration the Member affirmed the decision not to grant the applicant a student temporary class TU visa. That decision was made on 28 November 2014.

6. As he was entitled to do, the applicant appealed that decision which was an application by way of judicial review to the Federal Circuit Court of Australia alleging jurisdictional error.

7. The hearing of the application for judicial review came before the Federal Court of Australia before Judge Dowdy 28 June 2017. The Judge reserved his judgment and ultimately delivered a decision on the application for judicial review on 29 June 2018. That decision ultimately found in favour of the applicant and the Federal Circuit Court ordered that the decision of the Administrative Appeals Tribunal made on 28 November 2014 be quashed and it was remitted back to the Administrative Appeals Tribunal to be determined according to law.

8. The reasons for the Federal Circuit Court’s judgement are extensive but the essential point that was made, or at least the reasons for finding in the applicant’s favour on judicial review, was that the tribunal in the Federal Circuit Court’s view had failed to engage with a claim relating to the applicant’s father’s health and medical conditions which might have explained certain gaps in the applicant’s education history.

9. In any event, the application for review now comes back before a newly constituted Tribunal today and effectively that means it has to be reconsidered. But it starts afresh and so today if the application for review is to proceed the tribunal must consider whether the criteria for the grant of a student visa are met, applying the provisions that were in operation at the time he actually made the application for the visa which is back in 2014.

10. The critical considerations which the tribunal needs to consider are whether he meets the enrolment criterion and for that he needs to be produce evidence of enrolment or an offer of

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an enrolment. Typically that is done by way of producing a confirmation of enrolment document but the regulations at the time also permitted documentary evidence of an offer of enrolment, following which if there is such evidence and the tribunal is satisfied that there is such evidence of an enrolment, it can proceed to consider the determinative issue that was before the tribunal back in 2014. That is whether he is a genuine applicant for entry and stay as a student.

1. Those are the two issues if the matter proceeds. I should say before I proceed to consider those, I note for the record and for my reasons that the applicant at the outset of this hearing applied for an adjournment of the hearing which was ultimately refused by the tribunal. The applicant had originally applied for an adjournment of the hearing on 3 October 2019 which is about eight days ago and he sent an email requesting an adjournment. In summary, that request was made that was so he could arrange certain affairs which I will refer to in a moment because he has effectively repeated that application today.

2. The application was refused. He also made another request for an adjournment yesterday but that was simply to adjourn the hearing today by two hours but that was refused also. In any event, he turned up to the hearing so it’s really only the first adjournment made on 3 October and also the one presently made today that requires consideration.

3. The justifications for requesting the adjournment are set out in a statement made by the applicant which he lodged with the tribunal shortly before this hearing convened and for the record I shall read out in the entirety the statement that the applicant has made to the tribunal. It is undated but it was filed today.

   Respected sir/madam.

   Firstly I need some information about my file. When my same file was at the Federal Circuit Court and I been to hearing on 28 June 2017, AAT lawyer mentioned I have few gaps in my studies and later on in submission sent by her to court mentioned the same thing. As per my knowledge, I only have one gap. I do not aware of any other gaps. No information was being provided to me by IMMI or AAT. Can you please kindly provide me details for the gaps that I had on my student visa so I can find out reason why.

   Secondly the reason is for asking adjournment is related to recent change in India, Pakistan and Nepal passport holder’s assessment level changed. My file 18194114 student visa is opened on 12 September 2019 and the AAT asked for COE or offer letter along with some other documents and invite me for hearing on 11 October 2019 at 11:00 am WA time at AAT Perth. As I was organising required documents for my case on 26 September 2019, Immigration changed Indian passport assessment from level two to level three which changes everything such as criteria/requirement for getting COE from educational institute.

   Level three conditions are student visa applicants must have sufficient funds available for the duration of their stay in Australia. To be granted a student visa, applicants must meet the English language requirement, while on level two, funds and English requirement is not needed, only optional. My IELTS is already expired and I did not think that I needed it again until 26 September 2019 when Immigration changed the assessment level for Indian passport holders and now I need IELTS to provide you the documents you asked for and no education institute will give me COE without it and I must organise funds from back home as well to get COE and as part, my knowledge educational institutions are already start cancelling all the COE and offer

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letters which they issued two to three weeks before the changes in assessment level, 26 September 2019.

On that ground I request AAT to adjourn my hearing. That will give me some time to organise funds and to get my IELTS certificate which will take some time to do some preparation for the exam and sit in the exam and after the result I can get my COE.

In the meantime I have to receive information from the AAT file that I requested.

1. I note that this was read out verbatim and it is understandable that there are some English and grammatical errors in that because English is not the applicant’s first language. But the gist of that particular statement which was clarified in oral evidence from the applicant is that there were essentially two reasons which he sought an adjournment.

2. The first is that he sought time so that he could obtain the AAT file in relation to his case. He wanted the AAT to advise him of all the ‘gaps’ in relation to his education histroy. In the course of the hearing the tribunal made it clear to him that it is not the responsibility of the tribunal to outline to him or draw his attention to certain information or ‘gaps’ as he had called them in his educational history. It is a matter for him to present material that he may want to present to the tribunal to make out his case.

3. In terms of his requests for time so that he can access the entire file, the tribunal does not consider it to be a justifiable reason to delay this proceeding any further. The matter has a somewhat protracted history.

4. The tribunal is of the view that the applicant has had adequate time and also adequate interaction with his own lawyer to understand his entitlement for some time to make a formal request pursuant to whatever legislative regime he sought to invoke, whether that is the Freedom of Information Act or indeed the Privacy Act laws to make a formal request for the complete file of the AAT.

5. He has effectively been alerted to that idea it would seem in the last seven or so days. The reality is, though, that he has been aware that this particular proceeding will be coming back before the Administrative Appeals Tribunal since the Federal Circuit Court handed down a decision in his favour at the end of June 2018.

6. He raises this issue of access to his file at the AAT only just now. The tribunal is not satisfied that this constitutes a sufficient reason for the postponement of the hearing today.

7. The tribunal has also given consideration to the other reason, that is the second essential reason he seeks an adjournment. He as essentially articulated that there has apparently been some official change in relation to enrolment requirements, for which he has not provided any material in relation to. There has been some change, according to the applicant, that has been affected in the last week which essentially makes it more difficult for him to get a COE or some kind of enrolment. Ultimately the tribunal is also not satisfied with that explanation because it is incumbent on any applicant – whether it is an applicant who is coming back after a Federal Court hearing found in his favour or somebody who is coming to the AAT for the first time – given notice of their hearing date which the applicant was given notice of approximately one month ago, to come to the tribunal for the hearing ready to proceed to demonstrate that they meet the criteria on the day for the grant of a student visa.

8. The two essential criteria I have already identified. One, he must demonstrate evidence of a current enrolment, typically by the way of a COE or an offer of an enrolment. If he does not

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produce such evidence and I cannot be satisfied of that criterion, then there is no administrative utility in going on to consider whether he is a genuine applicant for entry and stay as a student. The primary reason for not being able to do that is because, if there is no tangible enrolment, whether or not somebody is a genuine applicant for entry and stay as a student, that issue requires reference to and consideration of the proposed course. If there is no tangibly proposed course then it is a virtual impossibility for the tribunal to engage in and make an assessment of whether he is a genuine applicant as a student because there is no proposed enrolment before the tribunal.

1. So back to the issue of whether there is evidence of an enrolment. There is none. The applicant confirmed as much in evidence. He said that he did make some enquires over the telephone with an agent. The tribunal also notes that it was made clear to him in his letter of invitation inviting him to this hearing that he would need to produce such evidence. As already outlined, the tribunal is not satisfied for the reasons as to why he does not have evidence of an enrolment. I also note that the applicant has been waiting essentially for five years since his original student visa was refused. The tribunal in the course of the hearing asked him why he was here in Australia and his answer was essentially that he appears to like Australia – he said he wants a good life. He did not say that he wants to be a student which struck the tribunal as somewhat unusual given that he comes here today seeking a student visa to reside in Australia temporarily as a student. So he did not say, when first posed that question, why is he in Australia, that he is here as a student.

2. While that is not determinative in this particular case, it would have had some bearing in any event of the criteria as to whether or not he was a genuine applicant.

3. In any event for the reasons that I have already outlined, the determinative issue in this case has become whether or not the applicant is currently enrolled or subject to a current offer of enrolment. He is not. For those reasons I am not satisfied that the applicant meets the criteria for the grant of a subclass 572 visa as they then were applicable. I am also not satisfied that he meets the criteria in any of the other subclasses in part 500 of the Migration Regulations as they then applied, including 570, 571, 573, 574, 575 or 576, all of which require evidence of an enrolment or an offer of enrolment.

4. So those are the reasons for my decision to ultimately affirm the application on review. The time now is 2:47, that is Melbourne time in case number 1819411. The tribunal affirms the decision not to grant the applicant a temporary student visa.

   DECISION

5. The Tribunal affirms the decision under review.

   Dr Jason Harkess
   Member

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