SUBRAMANIAN (Migration)

[2020] AATA 4705

SUBRAMANIAN (Migration) [2020] AATA 4705 (10 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ELANGOVAN SUBRAMANIAN

CASE NUMBER:  1722280

HOME AFFAIRS REFERENCE(S):          BCC2017/1542400

MEMBER:Gabrielle Cullen

DATE:10 November 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 10 November 2020 at 10:08am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – enrolment and study history – not currently enrolled in registered course – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359A
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.111, 500.211(a), 500.212(a)

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 1 September 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 28 April 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. A Confirmation of Enrolment attached to the current application of 28 April 2017 refers to the applicant studying a Bachelor of Business to 1 May 2020. The evidence indicates he ceased studying this course and enrolment was cancelled on 28 September 2019. He then submitted a COE to study a Graduate Diploma of Management (Learning) from 12 August 2019 to 9 August 2020. The evidence indicates enrolment in this course ceased on 14 November 2019 when the applicant notified the provider he was ceasing his studies.

4. With his application he submitted evidence of having completed a Bachelor of Arts in India, evidence of overseas health insurance to 1 July 2020, evidence of financial capacity and evidence as to enrolment and courses completed. He also submitted a statement addressing the genuine temporary entrant criteria and affidavits from his parents and wife.

5. On 1 September 2017 the delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student.

6. On 19 September 2017 the applicant lodged an appeal to the Tribunal and attached the decision of the Department.

7. On 2 April 2019 the Tribunal wrote to the applicant a s.359(2) letter as follows.

   As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:

   ·enrolled in a registered course of study; and

   ·a genuine applicant for entry and stay as a student.

   Accordingly, you are now invited to give, in writing, information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the ‘Request for Student Visa Information’ form which you can access by clicking on the link below.

8. The Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student the Tribunal must have regard to ‘Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ and attached a copy.

9. On 30 April 2019 the applicant submitted a completed “MRD Student Visa Information Form”, addressing the genuine temporary entrant criteria as well as a statement addressing the genuine temporary entrant criteria.

10. On 5 June 2019 the Tribunal wrote to the applicant and invited him to attend a hearing on 26 June 2019. The letter, among other matters, requested the applicant provide a current COE and documents that show his past studies in Australia. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212(a) and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached. The hearing on 26 June 2019 was cancelled as the Member was unwell and the applicant was invited to attend a hearing on 12 August 2019.

11. On the day of the hearing the applicant provided COEs as to past courses studied as well as an unsigned offer of enrolment to study the Bachelor of Business from 20 September 2019 to 12 August 2022 at Group Colleges Australia dated 25 June 2019.

12. The applicant appeared before the Tribunal (differently constituted) on 12 August 2019 to give evidence and present arguments. He was assisted with an interpreter in the Tamil and English languages. At the hearing the applicant provided evidence as to matters pertaining to the genuine temporary entrant criteria. The Tribunal questioned the applicant as to his lack of current enrolment in a registered course of study and lack of acceptance of the offer to study a Bachelor of Business from 20 September 2019 to 12 August 2022. The Tribunal adjourned the heading to give the applicant time to become enrolled.

13. On 29 July 2020, the applicant was advised by the Tribunal that the previous Member who was reviewing the cases is no longer available and that the matter had been reconstituted to a different member. The applicant was advised that all documents and other material that were considered by the previous Member have been given to the current member, including material from the Department; recordings of any hearings and any submissions or other evidence provided to the Tribunal.

14. On 11 September 2020 the applicant was invited to attend a hearing on 9 November 2020. The letter, among other matters, requested the applicant provide a current COE and documents that show his past studies in Australia. It noted the Tribunal may assess whether he intends genuinely to stay in Australia temporarily, which was the reason for the delegate’s decision and referred to and attached Direction 69. The letter also noted that the Tribunal may assess whether the applicant is enrolled in a registered course of study and that not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review.

15. On 7 October 2020 the Tribunal sent the following s.359A letter to the applicant:

    You are invited to comment on/respond to information that the Tribunal considers would, subject to any comments/response you make, be the reason, or a part of the reason, for affirming the decision that is under review.

    
    
    

    The particulars of the information are:

    ·You applied for a Student visa on 28 April 2017 and attached a Confirmation of Enrolment to study a Bachelor of Business to 1 May 2020. The evidence indicmates you ceased studying this course and enrolment was cancelled on 28 September 2017. You then submitted a Confirmation of Enrolment to study a Graduate Diploma of Management (Learning) from 12 August 2019 to 9 August 2020.

    ·Information from the Australian Government’s PRISMS record system, which records Confirmation of Enrolments and start and end dates of each course you were enrolled in, indicates that you are not currently enrolled in a registered course of study and that enrolment in the Graduate Diploma of Management (Learning) ceased on 14 November 2019 when you notified cessation of studies.

    This information is relevant because one of the criteria for the visa for which you have applied, regulation 500.211 provides that at the time of this decision you are enrolled in a course of study: cl.500.211(a). You have not claimed to meet any of the alternative criteria in cl.500.211.

    ‘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.

    The evidence from the PRISMS record indicates that you do not meet this requirement as you are not currently enrolled in a course of study.

    If the Tribunal is not satisfied that you meet this requirement, the Tribunal may find that you do not meet cl. 500.211. You may then not be entitled to be granted a Student visa for which you have applied.

    You are invited to give comments/respond to the above information in writing

16. The applicant was given until 9 November 2020 to comment or respond to the information.

17. On 2 November 2020 the applicant provided the following documents.

    ·Letter dated 6 November 2019 from the Sydney School of Business & Technology to certify that the applicant was enrolled in the Graduate Diploma of Management (Learning) as a full-time student. It indicated his enrolment was for the period 12 August 2019 to 9 August 2020.

    ·Letter from the education provider dated 18 May 2020 regarding overdue fees of $3,000.

18. The applicant attended the hearing on 9 November 2020. He was assisted with an interpreter in the Tamil and English languages. The Tribunal indicated that the issues before it is whether he is enrolled in a course of study as required by cl. 500.211 and whether he meets the genuine temporary entrant criteria as required by cl.500.212. It explained these provisions and referred to Direction 69.

19. The applicant indicated that he was not currently enrolled in a course of study and had ceased enrolment in the Graduate Diploma of Management (Learning). He referred to having difficulty paying the fees and losing his job. When asked whether he wished to add anything he said that in 10 years of studying in Australia he had paid all the fees and completed the courses. He said he was now over the age limit as to applying for a substantive visa.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. 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. The issue before the delegate was whether the applicant met the criterion in cl.500.212, however as raised with the applicant another matter before the Tribunal is whether he meets cl.500.211.

22. 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.

23. ‘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.

24. The Tribunal raised with the applicant the requirement of enrolment for the grant of a student visa and referred to cl. 500.211 in writing on a number of occasions including in the recent s.359A letter and at the hearing on 9 November 2020.

25. The evidence submitted by the applicant to the Department and then the Tribunal in 2019 indicates the applicant was enrolled in a Bachelor of Business to 1 May 2020 which he ceased studying on 28 September 2019 and then a Graduate Diploma of Management (Learning) from 12 August 2019 to 9 August 2020 which he ceased studying on 14 November 2019. While he submitted an offer to study a Bachelor of Business from 20 September 2019 to 12 August 2022 there is no evidence before the Tribunal that he was ever enrolled in this course. Current information obtained from the PRISMS record, raised with the applicant via s.359A in the Tribunal’s letter dated 7 October 2020, indicates he is not currently enrolled in a course of study and ceased enrolment in the Graduate Diploma of Management (Learning) on 14 November 2019. At hearing he confirmed he is not currently enrolled in a course of study.

26. The Tribunal has considered his reasons as to why he is not currently enrolled, however on the evidence before it, 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.

27. 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

28. The Tribunal affirms the decisions not to grant the applicant a Student (Temporary) (Class TU) visas.

    Gabrielle Cullen
    Member