TEOH (Migration)

[2019] AATA 3563

TEOH (Migration) [2019] AATA 3563 (1 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JING YONG TEOH

CASE NUMBER:  1718217

HOME AFFAIRS REFERENCE(S):           BCC2017/1997803

MEMBER:Mark Bishop

DATE:1 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 01 July 2019 at 9:15am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 – Advanced Diploma of Leadership and Management – confirmation of enrolment not provided – not genuine temporary student – previous enrolments cancelled – lack of course progress – held numerous visas – declined to provide information about employment history, foreign travel and community ties in Australia – using student visa program to extend stay in Australia – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), ss 65, 359, 360, 363A, 376
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 500.212

CASES
Hasran v MIAC [2010] FCAFC 40

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 11 August 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 6 June 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. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant appeared to be using the student visa program as a means of extending his stay in Australia and did not genuinely intend to stay in Australia temporarily as a full time student.

4. The applicant provided a copy of the decision record to the Tribunal. The decision record contained a copy of the applicant’s immigration, enrolment and education history. The decision record contained a copy of the applicant’s PRISMS record. The delegate made a finding that previous enrolments of the applicant were cancelled due to disciplinary reasons. The delegate made a finding the applicant abandoned previous courses of enrolment and was not issued a release letter or letter of approval authorising withdrawal of studies. The delegate made a finding the applicant was reported to the DIBP for not achieving satisfactory course progress in 2016. The delegate made a finding the applicant did not lodge any appeals in these matters. The delegate made a finding the applicant was granted four (4) temporary visas in the period 2012 until 2017 and completed 1 ELICOS course in this period.

5. On 14 March 2019 the Tribunal formally wrote to the review applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal, including information in relation to enrolment.  

6. The Tribunal advised the applicant a response should be provided by 28 March 2019 or request an extension of time in which to provide a response. The Tribunal advised the applicant in writing if it did not receive a response within the period allowed or as extended the Tribunal may make a decision on the review without taking any further action to obtain the information.

7. The applicant did not provide a response within time and did not seek an extension of time.

8. On 5 April 2019 the applicant provided a s.359(2) response to the Tribunal. This response was not within time.

9. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under section 359(2) of the Act.  That invitation stated that it is a requirement of the student visa that the applicant is enrolled in a course of study and that the applicant is a genuine applicant for entry and stay as a student and requested information which goes towards both criteria. The invitation was sent to the review applicant’s nominated address, being the address provided by the review applicant in connection with this application for review. 

10. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1).

11. The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

12. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

13. In these circumstances, the Tribunal has proceeded to make a decision having regard to the information before it, including the information previously provided by the applicant to the Department.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. The Tribunal file contained a non-disclosure certificate made under s.376 of the Migration Act. The Tribunal examined the certificate. The Tribunal determined it was a valid certificate. The certificate contained allegations relating to bigamous marriages, taxation compliance and employment practices. The non-disclosure certificate was not relevant to Tribunal deliberations or to the review application. This was because the Tribunal came to its decision for the reasons outlined in paragraphs 17 to 27 below relating to lack of proof of enrolment in a course of study. The Tribunal did not have any regard to the non-disclosure certificate or the content of same.

17. On 5 April 2019 the applicant provided a written response to a s.359(2) request for information. As outlined above this response was not within time. The Tribunal had regard to this information. The applicant advised as follows:

    ·The applicant completed high school in Malaysia in 2011;

    ·The applicant declined to provide information about employment prior to coming to Australia;

    ·The applicant arrived in Australia in 2012, returned to his home country for 10 months in 2013 for family reasons and since that time has only occasionally visited Malaysia for short durations;

    ·The applicant declined to provide information about visits to other countries (if any) in the last ten years;

    ·The applicant made application for this visa in August 2017;

    ·The applicant has held numerous tourist, student and bridging visas in Australia from March 2012 until the present time;

    ·The applicant has not been refused a visa to any other country,

    ·The applicant currently holds a Confirmation of Enrolment (COE) in a course of study;

    ·The applicant completed a course in General English after 3 months of study in February 2015. The applicant completed an Advanced Diploma of Leadership and Management in December 2018. The applicant enrolled in a Certificate IV in Commercial Cookery in January 2019;

    ·The applicant advised he enrolled in a Certificate IV in Commercial Cookery because he needed to find a new education provider because of past multiple changes of education provider. He selected Choice Business College (CBC) as he was interested in the course;

    ·He advised education in Australia would assist to find work in his home country;

    ·The applicant declined to provide detail about work or employment history in Australia from 2012 until the present time;

    ·The applicant advised his current annual living expenses were approximately $27,000 AUD;

    ·The applicant advised of parents and sibling living in Malaysia. He last saw them in March 2019. He was in contact with his family through video calls.;

    ·He advised of having “nothing” in Australia and his purpose for being in Australia was “just to study”. He gives priority to his family in his home country;

    ·The applicant declined to provide detail of community ties in Australia;

    ·He will return to his home country to seek employment;

    ·The applicant advised he did not have any concerns about military commitments or political or civil unrest in his home country;

18. The applicant did not provide any supporting information (such as a letter from his education provider or receipt for payment of tuition fees that identifies the relevant course) that shows he is enrolled in a course of study. Excluding the assertion outlined in paragraph 17 above as to a COE there is no evidence before the Tribunal the applicant is currently enrolled in a course of study.

19. The applicant provided a GTE Statement to the Department ((Df: 1,21). The Tribunal has reviewed this GTE Statement. This GTE Statement outlined his study history in Australia. He did not advise of completion of any courses. He did not provide Certificates of Graduation to the Department. He examined options of alternate education providers. He chose SBTA in Sydney because of its location, convenience and general facilities. He enrolled in an Advanced Diploma of Leadership and Management. He outlined course unit detail. He did not provide any detail of course progress after enrolment.

20. The applicant provided a COE to the Department for enrolment in an Advanced Diploma of Leadership and Management. This COE expired on 17 December 2018 (Df; 3).

21. He did not provide any further COE’s to the Department. He did not provide a copy of a current COE to the Department.

22. The applicant did not provide any Certificates of Graduation, Statements of Attainment or copies of academic transcript for any course of study in Australia.

23. 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.

24. The first primary criteria is contained in clause 500.211, which requires that at the time of decision the applicant is enrolled in a course of study:

    500.211One of the following applies:

    (a)   the applicant is enrolled in a course of study;

    (b)   if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

    (c)   if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;

    (d)   if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.

25. ‘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 applicant does not claim to meet any of the alternative criteria in cl.500.211.

26. There is no recent evidence before the Tribunal for it to be satisfied that the applicant is currently enrolled in a course of study as required by cl.500.211. As such, the Tribunal is not satisfied that the criteria for the grant of a Subclass 500 (Student) visa are 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

27. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Mark Bishop

    Member