Thompson (Migration)

[2019] AATA 6929

Thompson (Migration) [2019] AATA 6929 (11 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fabian Stephen Daniel Thompson

CASE NUMBER:  1709961

HOME AFFAIRS REFERENCE(S):          BCC2016/4220175

MEMBER:David Thompson

DATE:11 October 2019

PLACE OF DECISION:  Perth

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

Statement made on 11 October 2019 at 12:46pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no current enrolment – no substantive response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), Schedule 2, cls 500.211(a), 500.212

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 20 April 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 14 December 2016. 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 he was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 22 May 2019 to give evidence and present arguments.

5. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. The issue before the delegate in the present case was whether the applicant was a genuine temporary entrant for the purposes of cl.500.212. At the date of hearing, the applicant was enrolled in a Bachelor of Exercise and Sport Science at the University of Notre Dame Australia (the University). That course is a registered course of study of the purposes of cl.500.211(a) of Schedule 2 to the Regulations. However, following hearing it came to the Tribunal’s attention that the applicant had ceased to be enrolled in that course, and was not enrolled in any registered course of study at all. The Tribunal confirmed this by obtaining a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS). As a result, the issue before the Tribunal became whether, at the time of decision, the applicant met the enrolment requirement for a student visa provided in cl.500.211(a) of Schedule 2 of the Regulations.

   Enrolment (cl.500.211)

9. 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 has not claimed to meet any of the alternative criteria in cl.500.211, and there is no evidence before the Tribunal suggesting that he might do so.

10. ‘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.

11. On 19 September 2019 the Tribunal wrote to the applicant through his representative pursuant to s.359A of the Act. In that letter, the Tribunal informed the applicant that the purpose of its letter was to invite him to comment on or respond to certain information which the Tribunal considered would, subject to the applicant’s comments or response, be the reason, or part of the reason, for affirming the decision under review. The Tribunal’s letter went on to explain that:

    a.the information in question was that recent checks of PRISMS indicated that he did not hold a current Confirmation of Enrolment;

    b.that information was relevant to the review because the applicant had applied for a student visa and his PRISMS record indicated that she was not currently studying and did not have an enrolment to study in future;

    c.if the Tribunal relied on that information, it might find that the applicant was not currently enrolled and therefore did not meet the criterion in cl.500.211; and

    d.if the Tribunal made that finding it might conclude that the applicant was not entitled to the grant of a student visa.

12. The letter went on to invite the applicant to give comments or to respond to the information in question, and set the date of 3 October 2019 as the date by which such comments or response must be provided to the Tribunal. The letter warned the applicant that if he did not provide her comments or response by that date, or by any extended date that the Tribunal might allow, the Tribunal might make a decision on the review without taking any further action to obtain the applicant’s views on the information in question.

13. On 2 October 2019 at 10.06 p.m. the Tribunal received an email message from the applicant’s representative seeking an extension of time in which to respond to or comment on the information contained in the Tribunal’s letter dated 19 September 2019 until 18 October 2019. That email submitted that “the applicant has been unwell for the last few days and has not been able to go to his education institution to study and find out about his CoE status.” It also submitted that the applicant had sent the University “an email asking for clarification regarding his CoE status”, but that he had not received any communication from the University regarding cancellation, nor any answer to his email. Copies of a medical certificate and the applicant’s email to the University were provided. However, the email was undated and the medical certificate only stated that the applicant was unfit for work from 2 October 2019 to 3 October 2019 inclusive. The Tribunal took the view that no sufficient justification for an extension of time of such length had been provided, and that the nature of the enquiry in question did not appear to require it. The Tribunal extended the date for the applicant’s response to 9 October 2019.

14. On 9 October 2019 the applicant’s representative sent the Tribunal a further email message, in which she stated (amongst other things) that the applicant was appealing to the University against the termination of his enrolment, and that he sought an extension of time of 15 working days to allow that appeal to be dealt with. The Tribunal declined to grant any further extension, on the basis that the applicant had had ample time to seek information from the University and to respond to or comment on the information contained in the Tribunal’s letter, and that in substance his request for a further extension was a request for time to rectify his enrolment status and not a request for further time in which to comment or respond.

15. Under cl. 500.211 of Schedule 2 to the Regulations, an applicant for a student visa who is neither a Foreign Affairs student, nor a Defence student (as those terms are defined in r.1.03 of the Regulations), nor 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, must be enrolled in a registered course of study as a condition for the grant of a student visa: cl.500.211(a). This criterion must be met at the date of decision. The regulation is couched in mandatory language, and does not give any decision maker, including the Tribunal, power or a discretion to dispense with the requirement.

16. The latest communication the Tribunal has received from the applicant through his representative confirms that he is not currently enrolled in a registered course of study, as stated in his PRISMS record. There is no evidence to the contrary of any kind before the Tribunal.

17. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study. Accordingly, cl.500.211 is not met.

18. 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

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

    David Thompson
    Member