Abbasi (Migration)

[2019] AATA 6569

Abbasi (Migration) [2019] AATA 6569 (5 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raheel Gul Abbasi

CASE NUMBER:  1718945

HOME AFFAIRS REFERENCE(S):          BCC2017/1961706

MEMBER:Steven Griffiths

DATE:5 December 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 05 December 2019 at 9:23am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – no information provided and no appearance by applicant at hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2), 359C, 360(1), (3), 363A

Migration Regulations 1994 (Cth), Schedule 2, cl 500.211

CASE

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 4 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 2 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).

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

5. On 18 October 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide all relevant information about the course(s) of study she is undertaking and her entry and stay in Australia as a student in writing. The invitation was sent to the applicants registered migration agent, Mrs. Kaur Barjinder, of BK Migration, by email [email protected] and advised that, if the information was not provided in writing by 1 November 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. On 29 October 219 the Tribunal received, from the registered migration agent, confirmation the applicant was overseas until 31 October 2019 and a request for an extension of time to provide the requested information. The Tribunal confirmed an extension to 15 November 2019.

7. On 30 October 2019 the Tribunal wrote to the applicant inviting him to a hearing, pursuant to s.360(1) of the Act, scheduled for 5 December 2019 and providing the opportunity for any additional information that they may wish to rely upon to be provided by 28 November, 2019.

8. While the Tribunal had confirmed an extension of time to provide information under the s.359(2) request, no information was received from the applicant. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal, with this confirmed by email to the registered migration agent on 18 November 2019. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

9. 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 relevant decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much details as if necessary to enable the examiner to establish the relevant facts.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 cl.500.211 to cl.500.218 must be satisfied by at least one applicant.

11. The Tribunal has read and had regard to information provided by the applicant to the Department (comprising 61 folios). The Tribunal has also read and had regard to the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant with his application for review.

12. The Tribunal notes the delegate’s decision was based around compliance with cl.500.212 of the Regulations and if the applicant was a genuine applicant for entry and stay as a student.

13. The applicant is a 37 year old male from Pakistan, who arrived in Australia in September 2012 on a subclass 442 visa, which was to cease on 31/03/13. On 26/03/13 he was placed on a bridging visa, with a subclass 572 visa issued on 07/05/13 and to cease 14/11/14. On 14/11/14 he was placed on a bridging visa, with a further 572 visa issued on 131/03/15 and to cease on 21/04/16. On 20/04/16 he was placed on a bridging visa, with a further 572 visa granted 24/05/16 and to cease 02/06/17. Since 02/06/17 he has been on bridging visas, with the last granted on 01/08/19.   

14. The Tribunal determines the issue in the case is whether the applicant satisfies the primary criteria contained in cl.500.211 of the Regulations, which states the following must be satisfied:-

    500.211 One 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 education 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 Affairs Minister for the grant of the visa;

15. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulation 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 did not claim to meet any of the alternative criteria of cl.500.211.

16. The Tribunal has not been provided with any information by the applicant that he is currently enrolled in a course of study as required by cl.500.211. As such, the Tribunal cannot be satisfied that the criteria for a 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

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

    Steven Griffiths
    Member