Tran (Migration)

[2021] AATA 570

Tran (Migration) [2021] AATA 570 (10 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dinh Tan Tran
Sophia Tran
Thi Hai Phuong Nguyen

CASE NUMBER:  1902632

HOME AFFAIRS REFERENCE(S):          BCC2018/5033715

MEMBER:T. Quinn

DATE OF ORAL DECISION:  10 February 2021

DATE OF WRITTEN STATEMENT:         10 February 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 10 February 2021 at 2:20pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no current enrolment – first applicant currently offshore waiting for working visa – delay in processing – COVID-19 travel restrictions and separation from family – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(2), 347, 359(2)
Migration Regulation 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 Home Affairs (‘the delegate’) on 22 January 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicants applied for the visa on 13 November 2018 (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The primary applicant (‘the applicant’) applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. 

3. On 22 January 2019, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicants’ review application.

4. On 5 February 2019, the applicants applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. Approximately two years have elapsed since the making of the delegate’s decision and the applicants’ application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 7 April 2020, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The applicants sought and were granted an extension to respond to the s359(2) letter and thereafter responded to the s359(2) letter on 2 June 2020 which was within the extended prescribed time period.

6. The applicant appeared before the Tribunal on 10 February 2021 for a telephone hearing to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

7. It is for the applicants to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicants’ case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicants, in as much detail as necessary, to enable the decision maker to properly consider the case that is being put.

8. The Tribunal has proceeded to a decision having regard to all the information before it, including the material and evidence provided by the applicant prior to and on the day of the hearing.

9. For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed in this case.  In reaching its decision, the Tribunal has had regard to:

   a.the oral evidence of the first applicant given at the hearing;

   b.all written material filed by or on behalf of the applicants before, during and after the hearing; and

   c.other relevant documents on the Tribunal and Department files.

   The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be fundamental or materially significant to the determination of the issues in the case.

   STATUTORY FRAMEWORK

10. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. While the determinative issue before the delegate was whether the applicant met the genuine temporary entrant criteria under clause 500.212 of the Regulations, it became clear at the outset of the hearing that the applicant did not meet other criteria that must be satisfied for the grant of a student visa.

    Enrolment (clause 500.211)

12. Clause 500.211 relevantly requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.[1] The applicant does not claim to meet any of the alternative criteria in clause 500.211 of the Regulations.

    [1]Clause 500.211(a) of Schedule 2 to the Regulations.

13. ‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has  been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[2]

    [2]Regulation 1.03 of the Regulations.

14. All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[3]  Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[4] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.

    [3]Section 10 of the ESOS Act.

    [4]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).

    Significance of Enrolment Criterion

15. Producing evidence of current enrolment is a critical first step towards obtaining a student visa.  Such evidence shows that the applicant has, prior to the Tribunal making its decision, entered into a legally binding contract with a registered course provider.  That contract gives rise to several significant obligations.  First, it obliges the course provider to provide the applicant with a pre-determined course of education or training over a specified period.  Second, it obliges the applicant to pay for the course.  Third, it obliges the applicant to complete the course requirements to receive a testament from the course provider as to what the applicant has achieved by way of formal qualification.  An enrolment therefore represents a present and operating commitment by the applicant to complete a course of study.  It is persuasive evidence of a tangible and immediate need for a student visa.

16. An enrolment continues to be of legal significance once a student visa is issued.  All student visas are subject to a condition that the visa holder remain enrolled in a registered course of study.[5]  That condition operates on a continuing basis every day the visa remains valid.  If a student visa is issued to an applicant who is not enrolled in a course of study, the visa will be breached as soon as it is granted.

    [5]Schedule 5 to the Regulations.

17. The Tribunal must therefore be presented with evidence that shows the applicant is currently enrolled in a registered course of study. Absent such evidence, a student visa cannot sensibly be grated. Indeed, in any case for a student visa, consideration of whether all other primary criteria are met, as contained in clauses 500.211-500.218 of the Regulations, is premised on the enrolment criterion in clause 500.211 first being satisfied. If clause 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.

    THE HEARING

18. In the introduction to hearing, the Tribunal stated that in an application for review of this type, it must consider certain things:

    a.one is whether you are enrolled in a course of study (cl500.211(a)); and

    b.the other is whether you are a genuine applicant for entry and stay as a student intending genuinely to stay in Australia temporarily (cl 500.212(a)).

19. The Tribunal then asked if the applicant had any questions to which they responded in the negative.

20. The Tribunal also confirmed that the applicant had read the questionnaire which he completed in response to the s359(2) letter (‘the questionnaire’). The questionnaire makes several requests for information relating to the enrolment condition contained in clause 500.211 of the Regulations. In the section of the questionnaire making these enquiries, the document also states “[n]ot being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.” Here, the questionnaire specifically asks the following question: ‘Does the Main Applicant have a current Confirmation of Enrolment (C oE) in a registered course of study?’ The applicant stated ‘no’ and gave evidence at hearing that he has not been enrolled since February 2020. His other answers to the questionnaire were consistent with this answer.

21. The questionnaire requests information in relation to all enrolments and specifically states that this includes: cancelled enrolments; courses successfully completed; and current or future enrolments.  The applicant did not list any current or future enrolments in this section of the questionnaire.

22. When the Tribunal wrote to the Applicant by letter on 25 January 2021, inviting him to the hearing scheduled for 10 February 2021, the Tribunal advised that it was necessary for the applicant to produce a COE or other documents showing that he is currently enrolled in a course of study as defined by Clause 500.211 of Schedule 2 of the Regulations. It was made clear in that letter that proof of enrolment is a requirement for the grant of a student visa. The Tribunal requested such proof be provided 7 days prior to the scheduled hearing. As at the time of this decision, there remains no such proof. The applicant confirmed at hearing he had read this document.

23. The Tribunal enquired about whether the applicant held a current confirmation of enrolment and his evidence was that he had completed his Diploma and did commence his Advanced Diploma but had difficulty sourcing funds to continue and so withdrew from his course in February 2021 and has not been enrolled since that time

24. The applicant gave detailed evidence and made detailed submissions about his application for a 491 visa (Skilled Work Regional visa) (‘the 491 visa’).  He gave evidence that he travelled back to Vietnam especially to make this application offshore in February 2020 which was a nominated application.  He gave evidence he has outlaid considerable expense to obtain this visa and that the COVID19 Pandemic appears to have caused significant delays and he has now been waiting the outcome of that application for nearly one year.  He gave evidence that he has not seen his wife and daughter for a year and wants them with him in Australia.  It was obvious this has been a very difficult time for him and in the circumstances, particularly in light of the difficulties with international travel during the COVID19 Pandemic, it would seem appropriate that a bridging visa be granted by the Department in order that the applicant may remain onshore while awaiting the outcome of the 491 visa application. 

25. The Tribunal empathises with the applicant in relation to the delays experienced with the 491 visa application and the emotional difficulties faced in being separated from loved ones at this time.  However, the question of enrolment is a question of fact and the applicant’s evidence is that he is not enrolled.

26. The Tribunal considered and explained that the determinative issue in the applicant’s case had changed as a current confirmation of enrolment has not been provided and the applicant’s own evidence was that he understood and that he is not currently enrolled.  

27. The applicant was unable to produce evidence of a current Confirmation of Enrolment to the Tribunal at the hearing which would establish that they met the essential requirement under clause 500.211(a).

28. The Tribunal has no evidence of a current Confirmation of Enrolment which would establish that the applicant meets the essential requirement under clause 500.211(a) of the Regulations.

29. The applicant has had an adequate opportunity to obtain such evidence. In the circumstances, the question of whether the applicant meets the criteria under clause 500.211 has become determinative for the purposes of the case before the Tribunal. If the applicant does not meet the criteria under clause 500.211, then there is no utility in the Tribunal proceeding to consider whether the genuine temporary entrant criteria are met under clause 500.212.

30. The applicant does not meet the regulatory requirements for the grant of a student visa because there is no evidence satisfying any of the criteria in clause 500.211 of the Regulations.

    CONCLUSIONS

31. Therefore, the Tribunal is not satisfied that at the time of its decision, the applicant was enrolled in a course of study and accordingly clause 500.211 of the Regulations is not met.

32. 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.

33. Consequently, as the decision in relation primary applicant’s review has been affirmed, the Tribunal cannot be satisfied that clause 500.311 in Schedule 2 of the Regulations is met by the second and third applicants as it requires that they be a member of the family unit of a person who satisfies, or has satisfied, the relevant primary criteria.

34. Therefore, the criteria for the grant of a Student visa are not met by the second or third applicants and the decision in relation to their review must also be affirmed.

    DECISION

35. The Tribunal affirms the decisions not to grant the applicants’ Student (Temporary) (Class TU) visas.

    T. Quinn
    Member