TRAD (Migration)

[2019] AATA 1435

TRAD (Migration) [2019] AATA 1435 (29 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hassan TRAD

CASE NUMBER:  1718554

HOME AFFAIRS REFERENCE(S):           BCC2017/2490928

MEMBER:Michael Biviano

DATE:29 April 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 29 April 2019 at 3:09pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not entitled to appear before the Tribunal – enrolment status – applicant not enrolled in a course of study at time of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 500.211

CASES

Singh v MIAC [2009] 236 FLR 384

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 8 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 13 July 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 on the material before the delegate in the visa application and his circumstances, the delegate found that the applicant did not intend staying in Australia temporarily.

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

5. On 17 January 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about the course(s) of study he was undertaking and his entry and stay in Australia  in writing. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by 31 January 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant sought and received an extension of time by which time to file the response, which was granted to 14 February 2019. On 12 February 2019, the applicant filed a response (‘Response’)

7. In the Response, the review applicant indicated that he consented to the Tribunal deciding the review without a hearing. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

8. 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.

9. In these circumstances, the Tribunal proceeded to make a decision having regard to all the information before it, including the Response and the information that the applicant provided to the Department.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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. While the issue before the delegate was whether the applicant is a genuine temporary entrant, arising from the applicant’s material, the issue before the Tribunal became whether, at the time of the decision, the applicant meets the enrolment requirement in cl.500.211(a) for a student visa.

    Enrolment (cl.500.211)

12. 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.

13. ‘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.

14. The applicant was born in Saudi Arabia and is a citizen of Lebanon.  He is 33 years of age. He arrived in Australia on 8 February 2015, after having obtained a Student Visa TU-573 on 17 December 2014 on his intention to study in the higher education sector. The Student Visa TU-573 was valid until 30 August 2017.

15. On 13 July 2017 the applicant applied for a Subclass 500 (student) visa and on 8 August 2017, the delegate refused the applicant’s application for a Subclass 500 (Student) visa.

16. The applicant in support of his application for the visa, provided  to the delegate information including Confirmation of Enrolment Certificates, for the following courses of study:-

    a.Certificate dated Certificate III Painting & Decorating at Della International College commencing 28 March 2016 and a course end date of 10 September 2017;

    b.Certificate dated 6 April 2016 Diploma of Building & Construction at Della International College commencing 25 September 2017 and a course end date of 23 September 2018; and

    c.Certificate dated 8 April 2016 Bachelor of Business at Stotts College commencing 19 November 2018 and a course end date of 30 June 2020.

17. The applicant  in the Response has confirmed that he enrolled in the following courses in Australia but gave additional information as to their status:-

    a.Academic Program English 3 Program at NAVITAS which was commenced in March 2015 and concluded in May 2015 (‘English Course’);

    b.Masters of Science (Project Management) at Curtain University which he commenced in July 2015 and did not complete (‘Masters Course’);

    c.Certificate III Painting & Decorating at Della International College which he commenced in March 2016 and completed in September 2017 (‘Certificate III Course’);

    d.Certificate IV Building & Construction at Della International College for which he was enrolled in March 2016, but he did not commence(‘Certificate IV Course’);

    e.Diploma of Building & Construction at Della International College for which he was enrolled in March 2016, but he did not commence (‘Diploma Course’); and

    f.Bachelor of Business at Stotts College for which he was enrolled in April 2016, but which he did not commence (‘Bachelor Course’).

18. The applicant has stated in the Response that he did not commence the Certificate IV Course, the Diploma Course or the Bachelor Course. The Tribunal did not receive any explanation from the applicant as why he had not commenced those courses of study

19. In Singh v MIAC [2009] 236 FLR 384, at [40] –[55], FM Turner held that the intention of the Confirmation of Enrolment Certificate is to ensure that at the time of the decision that the applicant is enrolled in or has a current offer to enrol in, an approved course of study. The Court held that to accept a Confirmation of Enrolment certificate which was not current would be inconsistent with the legislation then in place.

20. Further, the applicant in the Response confirmed that he did not have a current Confirmation of Enrolment in a registered course of study.

21. The Tribunal is not satisfied the applicant is enrolled in a course of study based on the information contained in the Response.

22. The Tribunal has not received any further submissions or a Confirmation of Enrolment certificate from the applicant since the filing of the Response confirming that he is currently enrolled in an approved course of study.

23. Therefore, 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.

    DECISION

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

    Michael Biviano
    Member