Sukhpreet Singh (Migration)

[2020] AATA 2965

Sukhpreet Singh (Migration) [2020] AATA 2965 (29 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sukhpreet Singh

CASE NUMBER:  1830020

DIBP REFERENCE(S):  BCC2018/1215217

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         29 April 2020 at 1:32 pm (VIC time)

DATE OF WRITTEN RECORD:                12 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 12 May 2020 at 12:05pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – current enrolment – all enrolments cancelled – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 September 2018 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 29 April 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. In case number 1830020 in the matter of Sukhpreet Singh.  This is an application for review brought by Mr Sukhpreet Singh.  He is 24 years old.  He seeks review of a decision made by a delegate of the Minister refusing to grant him a student visa.  He applied for this visa on 14 March 2018.  It was refused on 25 September 2018 by the delegate.  And he lodged his review application with the tribunal on 14 October 2018.  The visa was refused because the delegate did not think that he met the genuine applicant criterion in clause 500.212.

4. The issues today before the tribunal are whether the applicant firstly is currently enrolled in accordance with clause 500.211 and secondly, if he is whether he is a genuine applicant.

5. The hearing of this application took place on 29 April, that being today.  The applicant participated by phone to give evidence and present arguments.  Documents filed beforehand include a request for student visa information form completed by the applicant, which had been sent to the tribunal pursuant to section 359(2) of the Act, a submission prepared by his registered migration agent Mr Rajeev Madaan explaining why in the agent’s opinion and also on behalf of the applicant why the applicant should be granted his visa.  A confirmation of enrolment with reference code 9DB05621, which on its face indicates the applicant was currently enrolled in a Diploma of Hospitality Management starting on 27 January and finishing on 19 July 2020.  Those are all the documents on which the applicant intended to rely.

6. Now, in this particular case the enrolment criterion is that which is of concern.  Clause 500.211 requires that a student visa application be founded on evidence of the applicant being enrolled in a course of study.  The enrolment must be current at the time that the tribunal makes its decision.

7. While the determinative issue before the delegate was whether he met the genuine applicant criterion it became clear at the outset of today’s hearing the determinative issue will be whether he meets the enrolment criterion, which it appears he does not.

8. At the commencement of the hearing the tribunal inquired of the applicant as to whether he was currently enrolled.  He stated initially that he was currently enrolled and he referred to the confirmation of enrolment that I have already alluded to above, that he is currently enrolled in a Diploma of Hospitality Management.

9. However, prior to the tribunal convening this hearing the tribunal had arranged the registry to conduct a search of the International Student PRISMS database that is maintained by the Department of Education and Training.  That database contains all relevant information pertaining to current enrolments of all non-citizens who are studying in Australia in registered courses.  It provides an account of every individual non-citizen’s studies in Australia while they are residing in Australia.

10. Such a search was undertaken in relation to the applicant in this case.  Information obtained from the database disclosed that the enrolment bearing that particular confirmation of enrolment code relating to the Diploma of Hospitality Management with confirmation of enrolment reference code 9DB95621 was cancelled.  The enrolment was cancelled due to the non‑commencement of studies and it was cancelled on 18 December 2018.

11. More so than that it also disclosed all of the other applicant’s enrolments since he has been in Australia to date, including another Diploma of Hospitality, Certificate IV in Commercial Cookery, a Bachelor of Business, other enrolments in Certificate IVs and Diplomas of Hospitality and Commercial Cookery, Certificate III in Commercial Cookery.  All of his courses he has been enrolled in since being in Australia have been cancelled.  He admitted as much in evidence in the course of the hearing.

12. Now, this is what is referred to as adverse information in relation to an applicant’s case and so pursuant to section 359AA of the Migration Act the tribunal orally gave the applicant in the course of the hearing clear particulars of this information obtained from the database and explained why this was relevant and why it could be part of a reason or the reason for affirming the decision under review. It was made clear to the applicant that if the tribunal was to rely on this information it would indicate that he does not meet the enrolment criteria because that database indicates that his enrolment, which he initially said he relied on to support his case, has actually been cancelled, which would mean that he does not have a current enrolment, which if relied on, would lead to the tribunal affirming the decision under review.

13. The tribunal inquired of the applicant as to whether he understood the importance of this information and the consequences of the information, if it was being relied on by the tribunal on affirming the decision, and he said that he did.  The tribunal then invited the applicant to comment on or respond to the information but also made it clear to him that before he did he could seek additional time to comment on or respond to the information, if he requested such time.  When the tribunal asked if he would like such time he said that he did not and chose to respond immediately.

14. In summary, the applicant referred to the fact that he had issues with the course provider and there appear to have been tensions or issues with respect to his completion of the course.  He referred to the fact that the last time he attended the course or any course was about five to six months ago.

15. The tribunal listened very carefully to the reasons that he gave.  He also referred to the fact that he had been depressed and had problems in that regard as well.  But ultimately the tribunal is not satisfied that those operate as satisfactory reasons for not being able to produce any satisfactory evidence of a current enrolment today.

16. The importance of producing evidence of a current enrolment was previously communicated to the applicant on at least two occasions.  Firstly, of course, there is the request for student visa information form that was sent to him, which he obviously received and returned and read because he completed and returned it.  And in a section headed “Enrolment and study in Australia” he was asked: “Does the main applicant have a current confirmation of enrolment in a registered course of study?” and the form further stated that not being enrolled in a course of study may be a reason or part of a reason for the tribunal affirming the decision under review even if it is not the same criteria issue considered by the primary decision maker.

17. He was also sent a letter inviting him to this hearing approximately two weeks ago advising him of the need to provide evidence of a current enrolment at least seven days before the hearing.  He did provide the confirmation of enrolment but that is an old confirmation of enrolment which, of course, is out of date now.  In fact, it is well over a year out of date.

18. The tribunal inquired of the applicant as to whether or not he knew that his enrolment had been cancelled.  He said in evidence that he was not aware of that fact but given that his previous enrolment in cookery had been terminated and the fact that he had ceased attending classes the tribunal has great difficulty in accepting that the applicant had no idea that he was not enrolled.  He appears to have disengaged from studying all together for at least the last five to six months.

19. There is therefore no satisfactory reason for him not taking immediate steps to provide cogent evidence demonstrating that he is currently enrolled in a registered course of study today.  Accordingly, the tribunal finds that the applicant does not meet the regulatory requirements for the grant of a student visa because it is not satisfied that he meets any of the criteria contained in clause 500.211.  In these circumstances there is no point in going on to consider whether he meets the criteria contained in clause 500.212.

20. In this matter 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