Singh (Migration)

[2019] AATA 6853

Singh (Migration) [2019] AATA 6853 (9 October 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Amandeep Singh

CASE NUMBER:  1836419

DIBP REFERENCE(S):  BCC2014/2360988

MEMBER:  Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         9 October 2019 at 11:57 am (VIC time)

DATE OF WRITTEN RECORD:                19 February 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal reinstates the application for review.

The Tribunal affirms the decision under review.

Statement made on 19 February 2020 at 11:43am

CATCHWORDS

MIGRATION –Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector visa–  Tribunal reinstates the application for review –genuine temporary entrant criterion – enrolment criterion not met –no evidence of an enrolment –decision under review affirmed

LEGISLATION
Migration Act 1958, s 362

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 January 2015 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 9 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. The time is now 11.36 am on Wednesday, 9 October 2019.

4. This is an application for review in case number 1836419 brought by Mr Amandeep Singh in relation to a decision made by a delegate of the Minister for Immigration and Border Protection as he was then called, now the Minister for Home Affairs, refusing to grant him a student visa.

5. The applicant made his application for a student visa five years ago on 18 September 2014. Given the time that has elapsed, it can be inferred that there is a relatively complicated procedural history associated with that application which I will now outline.

6. The application was originally refused by a delegate of the then Minister on 5 January 2015. As the applicant is entitled to do, he applied for a review of that decision by the Administrative Appeals Tribunal. A hearing before the Administrative Appeals Tribunal was scheduled for 3 March 2016 and the applicant was given proper notice of that hearing through his authorised agent and invited to appear at that hearing just over two weeks before it was scheduled.

7. The applicant did not attend the hearing and in accordance with the procedures set out in the Migration Act the tribunal, constituted then by Member Connellan, dismissed his application for review on an interim basis due to the applicant failing to attend at the scheduled time and place. That is an express statutory power given to the tribunal.

8. As required by section 362C(5) of the Migration Act 1958, the applicant was then notified of that interim dismissal. He was also advised that he could apply for reinstatement of his application for review within 14 days. A new migration agent acting on the applicant’s behalf lodged an application for reinstatement within time and the applicant provided a statement in support of the application for reinstatement which essentially set out the applicant’s reasons, in his own words, for his failure to attend the scheduled hearing on 3 March 2016.

9. Following the application for reinstatement the matter then when back before Member Connellan for consideration of whether or not the application for review should be reinstated. If the application for reinstatement was granted, it would then proceed back to where it had originally started and the application for review would have been considered on its merits. Alternatively, Member Connellan had the option of confirming the decision to dismiss the application if the Member did not consider it appropriate to reinstate the application after considering the reasons articulated by the applicant for the reinstatement request.

10. As it turned out, the tribunal confirmed the dismissal, essentially for the reason that the Member was not satisfied with the reasons that were articulated by the applicant for his failure to attend the scheduled hearing.

    Case Number 1836419  Page 2 of 6

1. That essentially was the decision of the tribunal - simply confirming the original dismissal on the basis that he had failed to appear and also on the basis that the tribunal was not satisfied for his reasons for failing to appear.

2. The applicant then appealed that decision confirming the dismissal to the Federal Circuit Court. The application for review of the tribunal’s decision confirming the dismissal was heard on 15 December 2017. The application for review before the Federal Court was dismissed. The applicant then appealed that decision of the Federal Circuit Court to the Full Federal Court seeking leave for a number of reasons to overturn the Federal Circuit Court’s decision and ultimately seeking to have his matter remitted back to the tribunal.

3. In the end the Full Federal Court acceded to at least the main submission advanced by the applicant and the order of the Federal Court was that the appeal from the Federal Circuit Court was allowed. There was an order in the nature of certiorari such that the decision of the Administrative Appeals Tribunal made in relation to not reinstating his application and confirming the original interim decision was set aside.

4. So there was then, following that, an order from the Full Federal Court in the nature of mandamus ordering that the application be remitted back to the tribunal for determination according to law.

5. So it now comes before a newly constituted Administrative Appeals Tribunal on the basis of those orders of the Federal Court of Australia.

6. The applicant appeared in person at the hearing to give evidence and present arguments. The tribunal hearing was assisted by an interpreter in the Punjabi and English languages over the telephone although it became very evident that the interpreter was not required to assist the tribunal because the applicant’s English was generally very good. In fact there were no issues it would appear. His English is highly proficient.

7. The tribunal at the commencement of the hearing went through the procedural history as just outlined above with the applicant to make sure that the applicant understood why this matter was before the tribunal and what exactly was being considered by the tribunal today.

8. As explained to the applicant, and I now outline this in the reasons for the tribunal, there were two essential considerations for the tribunal today. First of all the tribunal had to consider whether it was appropriate in light of the Federal Court’s decision to reinstate the application for review on the basis of the reasons as articulated by the applicant that were originally advanced by the applicant when the tribunal was differently constituted. And so the options for the tribunal in that regard were either to, having regard to the reasons advanced by the applicant, to refuse to reinstate the application and confirm the dismissal or to actually reinstate the application and then move onto the next step which was to actually consider the merits of his application for a student visa.

9. The tribunal has considered the original reasons advanced by the applicant seeking to reinstate his application for a review. The tribunal, now differently constituted, takes a different view from the original Member. The tribunal finds that the circumstances as articulated by the applicant originally back in 2016 to have the application reinstated justify the reinstatement of the application for review.

10. Therefore the tribunal reinstates the application for review and that now leads me to the second part of this hearing, namely consideration of the substantive merits of the application on review.

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1. In terms of the considerations here I need to consider whether or not the applicant meets the primary criteria for the grant of a student visa. The relevant regulations of those that were in force at the time he applied for his 572 visa, he applied for this visa on 18 September 2014.

2. The regulations that are now applicable were not in effect at that time but in terms of those that were applicable, the criteria contained in part 572 of the migration regulations are those which are essentially relevant.

3. There are two criteria that were really contemplated for consideration by the tribunal today. That is whether the applicant is a genuine applicant for entry and stay as a student in Australia and the second criterion can be summarised effectively as the enrolment criterion.

4. The original application for a student visa was refused by the delegate of the Minister on 5 January 2015 not because there was no evidence of enrolment – he had supplied evidence of current enrolment back then to the delegate. The delegate was satisfied that the enrolment criterion was met. The application was refused because the applicant did not satisfy the delegate that he was a genuine applicant for entry and stay as a student

5. The tribunal notes that in this case, if there is no evidence of a current enrolment or offer of enrolment before the tribunal from a registered course provider, there is no administrative utility in considering whether the applicant is a genuine applicant. And so the first criterion that is to be considered is the enrolment criterion.

6. So that essentially was the first point of enquiry made by the tribunal today. It was anticipated based on evidence filed by the applicant before this hearing by his migration agent that he may not have such evidence. Following the invitation that the tribunal sent to the applicant on 11 September 2019 to attend this hearing, the applicant went and saw his registered migration agent, Mr Thomas Cherian and provided the migration agent with two documents. The first document is a document dated 15 January 2015 from Technical Education Australia which indicates the last enrolment that the applicant had. It indicates that the applicant was enrolled with Technical Education Australia as a fulltime student in a diploma of business from 14 June 2014 until 23 December 2014 and he successfully completed 63 per cent of that course. The other document he provided was essentially a statement of submission or evidence to the tribunal for the purposes of today’s hearing and I will read that out in full for the tribunal’s record. It is an undated type written letter addressed to the tribunal. It was filed with the tribunal on 4 October 2019. It states:

   Dear Member,

   With reference to my above application I respectfully submit the following for your further consideration.

   My student was cancelled in December 2014 while I was pursuing a diploma of business at Technical Education Australia, Footscray, Victoria.

   Ever since my student visa was cancelled I have been on a bridging visa E which prevents me from pursuing my studies while I do not have any work rights. Consequently, no education provider allows me to enrol in any course. As such, I could not continue with my enrolled course of diploma of business.

   Furthermore, as a result of the visa cancellation and the subsequent grant bridging visa E, I have not met my parents and siblings since 2014 as I do not have any travel rights.

Case Number 1836419  Page 4 of 6

I attach here with a certificate of issue by my education provider on 15 January 2015 stating that I have completed 63 per cent of my enrolled course, i.e., diploma of business. This was the progress of my course up until the cancellation of my student visa. I therefore regret my inability to provide any additional documents in regard to any further studies after the student visa cancellation.

The gap in my enrolment/studies from December 2014 until now is the consequence of the cancellation of my student visa as explained above. I genuinely intend to complete my studies which would be possible only on reinstatement of my cancelled visa by the honourable tribunal.

In view of the above explaining facts, I request your Honour to kindly consider my case and reinstate my cancelled student visa. Thanking you in anticipation.

Yours respectfully –

the applicant.

End of quote

1. The tribunal notes and enquired of the applicant in the course of the hearing today whether, when he referred to ‘cancelled visa’ or ‘cancellation of visa’, he really meant visa ‘refusal’. He confirmed that that was the case. There is a legal distinction between a cancellation and a refusal and it is not the case that the applicant was contending that his visa had been cancelled. He was referring to the refusal of the student visa that is now the subject of the tribunal’s review today.

2. The tribunal in the course of the hearing drew the applicant’s attention of the requirement that he must satisfy the primary criteria today. That is, he must provide evidence of an enrolment or an offer of enrolment for the purposes of him having any chance of his application for review advancing in his favour.

3. The applicant reiterated the points that were essentially outlined as quoted above in his type written letter sent to the tribunal. He stated that he had been under the impression that he was not entitled to study and that his bridging visa that he is currently on and has been on for the last five years gave him no study rights.

4. He also referred to the fact that his migration agent had advised him as much. He also referred to the fact that after his student visa was refused and he has been on a bridging visa for the last four or so years, he made approaches to two or three course providers and sought to enrol in courses and they all refused him because according to his evidence, they said you have no study rights.

5. The applicant has indicated that in the last five years or at least since his visa was refused back in January 2015 following those initial approaches to two or three course providers, shortly after that time, he has made no attempts at all to approach any course providers to seek enrolment or seek an offer of enrolment. The tribunal again referred to the fact that he had been sent a letter two weeks ago inviting him to this hearing, drawing attention to the fact that he needed to produce evidence of an enrolment.

6. He has according to his own evidence, not made any efforts in the interim period in the last two weeks to attempt to enrol in any course of study.

7. In these circumstances, while the determinative issue before the delegate back in January 2015 was whether he met the genuine applicant criterion, the determinative issue in relation

Case Number 1836419  Page 5 of 6

to today’s hearing relates to the enrolment criterion. I note that all of the subclasses of visa that operated at the time from subclass 570 all the way up to subclass 580 required

evidence of an enrolment or an offer of enrolment as one of the primary criteria.

1. The applicant has not provided any such evidence and so the tribunal cannot be satisfied today at the time this decision is being made that he meets the essential enrolment criterion for the grant of a student visa.

2. In those circumstances there is no administrative utility in proceeding for the tribunal to consider whether or not he meets the genuine applicant criterion. The tribunal notes that the applicant’s apprehension of him not being entitled to study is not a reasonable explanation of why he produced no evidence of an enrolment. He appears to be under a mistaken apprehension of his entitlements and certainly his entitlements to seek to apply for any relaxation of the conditions attaching to his bridging visa. He could have done that in the last five years at any stage. He has chosen not to.

3. Even if the tribunal I should say had gone onto consider whether the applicant was a genuine applicant, a significant consideration would have been the fact that he has not utilised the last five years to seek out courses of study which he could have enrolled in and sought any relaxation of his visa conditions so that he obtained the entitlement to study and that would have been a significant consideration weighing against a finding in his favour in relation to the genuine applicant criterion.

4. In any event the determination of the tribunal today is that the applicant does not meet the criteria for the grant of a student visa in accordance with the regulations that operated at the time of his application. In these circumstances, the time now being 11.57 am on 9 October 2019 in case number 1836419, the tribunal affirms the decision not to grant the applicant a temporary class TU student visa.

   DECISION

5. The Tribunal reinstates the application for review.¹

6. The Tribunal affirms the decision under review.

   Dr Jason Harkess
   Member

1 In these circumstances, by the operation of s 362B(1D) of the Act, the review application is taken never to have been dismissed.

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