Arciaga (Migration)

[2019] AATA 6221

Arciaga (Migration) [2019] AATA 6221 (24 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Charry Agcaoile Arciaga

CASE NUMBER:  1727438

HOME AFFAIRS REFERENCE(S):          BCC2017/3105383

MEMBER:Genevieve Cleary

DATE:24 November 2019

PLACE OF DECISION:  Perth

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

Statement made on 24 November 2019 at 9:15am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant failed to provide requested information – no entitlement to a hearing –genuine temporary entrant criterion not met – currently not enrolled –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 362
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212
Education Services for Overseas Students Act 2000

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 1 November 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 28 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 applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

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

5. On 27 March 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act. The letter informed the applicant that in order for a visa to be granted, the applicant must be enrolled in a registered course of study and a genuine applicant for entry and stay as a student. The letter also invited the applicant to provide information about the course of study the applicant was undertaking and her entry and stay in Australia as a student, 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 10 April 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 was granted an extension of time to provide that information to 30 April 2019. The applicant provided a response to the invitation pursuant to s359(2) of the Act, which the Tribunal received on 2 May 2019. In the response the applicant said that she did not consent to the Tribunal deciding the review without a hearing. Despite the response being out of time, the Tribunal was prepared to accept the response, and listed the matter for a hearing on 17 June 2019, notification of which was sent by email to the applicant’s registered migration agent on 22 May 2019.

7. On 11 June 2019, in response to a hearing date reminder sent by SMS to the applicant’s registered migration agent, the Tribunal received an email from the applicant’s registered migration agent which said

   The client has advised she is presently not studying.  As such she has not instructed us to provide submissions to the Tribunal.  She wants to receive a decision without attending the hearing.

8. Nevertheless, the hearing date was maintained for 17 June 2019, and a further reminder was sent by SMS to the applicant’s registered migration agent on 14 June.  The applicant did not attend the hearing at the set time, and neither did her representative.  This matter has therefore been determined on the evidence available to the Tribunal.

9. Prior to the hearing, the applicant sent to the Tribunal:

   ·The decision record of the delegate and

   ·The response to the s359(2) invitation, containing information about the applicant’s personal circumstances, family, work history and travel.

10. The Tribunal has also had regard to the Department file.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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. The issue in the present case is whether the applicant is enrolled in a course of study at the time of this decision.

    Enrolment (cl.500.211)

13. 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.

14. ‘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.

15. In her response to the invitation pursuant to s359(2) of the Act, the applicant said that she did not hold a current Certificate of Enrolment. Her agent, as has been described above, told the Tribunal that the applicant was not studying in June 2019.

16. Before making a decision, the Tribunal sought information about the applicant’s enrolment. A review of the Provider Registration and International Student Management System (PRISMS) indicated that as of 5 November 2019 the applicant was not enrolled in a course of study. The record showed that the applicant completed an intensive English course on 3 August 2018.  There are no further enrolments since then.

17. On 7 November 2019 the Tribunal wrote to the applicant pursuant to s 359A of the Act, explaining that the PRISMS record showed that she was, on that date, not enrolled in a course of study. The letter told the applicant that the Tribunal considered that that information would, subject to her comments or response, be the reason, or part of the reason, for affirming the decision under review. The applicant was told in the invitation that if the Tribunal did not receive her comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain her views on the information. The applicant was also told in the letter that she would lose any entitlement she might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give any further evidence and present arguments.

18. The applicant was asked to send her comments or response to the Tribunal by 21 November 2019.

19. The applicant did not respond to the invitation, and no extension of time to respond was requested.

20. 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.

21. 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.

    DECISION

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

    Genevieve Cleary
    Member