Angage (Migration)

[2019] AATA 2907

Angage (Migration) [2019] AATA 2907 (10 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ravishan Keerthi Kumara Perera Angage

CASE NUMBER:  1723680

HOME AFFAIRS REFERENCE(S):          BCC2017/2801400

MEMBER:P. Wood

DATE:10 April 2019

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 10 April 2019 at 10:00am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant – not enrolled in an approved course at the time of decision – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), ss 65, 359, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

CASES
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 15 September 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 6 August 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 review applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. On 21 February 2019 the Tribunal formally wrote to the review applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal, including information in relation to enrolment as required by cl 500.211(a).

5. The Tribunal did not receive any response to the before mentioned written invitation. That is, the review applicant has not provided the Tribunal with any further information than that which was provided to the Department.

6. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the review applicant’s nominated address, being the address provided by the review applicant in connection with this application for review. In this case, this was the address of the migration agent nominated by the applicant at the time of application.[1]

   [1] By way of background, 17 January 2019 the Tribunal wrote directly to the applicant advising him that he had been advised that his migration agent’s registration status had lapsed and inviting him to provide the Tribunal with updated information concerning his representation. He did not do so.

7. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1).

8. The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant 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 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.

10. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information before it, including the information previously provided by the applicant to the Department.

    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.

12. Clause 500.211 provides:

    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 educational 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 Minister for the grant of the visa;

    (d)       if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.

13. The Tribunal was provided with a copy of the Department file. The Tribunal has also read and had regard to delegate’s decision record, a copy of which was provided to the Tribunal by the applicant with his application for review.

14. Crucially, the Tribunal does not have before it recent evidence of current enrolment. As such, the Tribunal is not satisfied that the applicant is presently enrolled in a course of study as required by cl.500.211(a).

15. 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

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

    P. Wood
    Senior Member