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

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).
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.
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.
The applicant was assisted in relation to the review by their registered migration.
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.
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’)
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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: TRAD (Migration) [2019] AATA 1435
Case: [2019] AATA 1435
Decision Date: 29 April 2019

CaseChat Overview and Summary

This matter concerned an application for a Student (Temporary) (Class TU) visa, subclass 500, made by an applicant born in Saudi Arabia and a citizen of Lebanon. The applicant's visa application was refused by the delegate, and the applicant sought review of that decision before the Tribunal. The primary issue before the delegate had been whether the applicant was a genuine temporary entrant, but the issue before the Tribunal became whether the applicant met the enrolment requirement for a student visa at the time of the Tribunal's decision.

The Tribunal was required to determine whether the applicant satisfied the enrolment criteria as stipulated in clause 500.211(a) of Schedule 2 to the Regulations, which requires an applicant to be enrolled in a course of study at the time of the decision. A "course of study" is defined as a "full-time registered course," and a "registered course" is one provided by an institution registered to provide such courses to overseas students. The applicant provided Confirmation of Enrolment Certificates for several courses, but also provided information regarding the status of his actual enrolments.

The Tribunal found that while the applicant had been enrolled in various courses, including an English course, a Masters course, and a Certificate III in Painting and Decorating, he had not commenced or completed several other courses for which he had provided enrolment confirmations. Crucially, the Tribunal was not satisfied that the applicant was enrolled in a course of study at the time of the Tribunal's decision. Consequently, the Tribunal concluded that clause 500.211 was not met.

The Tribunal affirmed the delegate's decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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) 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. ‘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 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. 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. 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. 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’); andf.Bachelor of Business at Stotts College for which he was enrolled in April 2016, but which he did not commence (‘Bachelor Course’).

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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