CAVALCANTE CAETANO (Migration)

[2019] AATA 5664

CAVALCANTE CAETANO (Migration) [2019] AATA 5664 (13 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kelly CAVALCANTE CAETANO

CASE NUMBER:  1802419

HOME AFFAIRS REFERENCE(S):         BCC2017/3955381

MEMBER:Dominic Triaca

DATE:13 December 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 13 December 2019 at 11:58am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – non-enrolment in registered course – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), ss 65, 359(2)

Migration Regulations 1994 (Cth), Schedule 2, cll 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 on 18 January 2018 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 26 October 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. On 18 January 2018, 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 applicant was not considered to be a genuine applicant for entry and stay as a student (delegate’s decision). A copy of the delegate’s decision was provided to the Tribunal at the time of the applicant’s review application.

4. On 31 January 2018, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. The review application was listed before the Tribunal on 13 December 2019. The Tribunal attempted to contact the applicant and he did not answer his telephone. The Tribunal spoke to the applicant’s representative whom indicated that the they had been unable to contact the applicant in over a week.

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

7. On 3 October 2019, the Tribunal wrote to the applicant and invited her to provide further information pursuant to s 359(2) of the Act. The applicant responded to the Tribunal in writing on 14 October 2019 (359 Response). The Tribunal has read and had regard to the applicant’s 359 Response.

8. In the circumstances, the Tribunal has made a decision having regard to all the information before it, including the information previously provided by the applicant to the Department and the Tribunal.

9. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus 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 make to properly consider the case that is being put.

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

    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. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

12. Whilst the determinative issue before the delegate was whether or not the applicant met the genuine temporary entrant criteria under clause 500.212 of the Regulations, the applicant’s 359 Response indicates that the applicant does not meet other criteria that must be satisfied for the grant of a student visa.

    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. The applicant is a 36 year old citizen of Brazil. She arrived in Australia on 1 March 2013. The applicants’ submissions indicated that she is not currently enrolled in a registered course of study. The Tribunal does not have any evidence of a current confirmation of enrolment in a registered course of study as required by the Act and Regulations.

16. Specifically, by her 359 Response, she states in response to the question Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study? “No”.

17. The Tribunal notes that in her 359 Response, the applicant does not indicate that she is presently enrolled in any form of study in Australia. her last stated enrolment was a Diploma of Business Information Systems in 2015 which she states she did not complete.

18. There is no current Confirmation of Enrolment before the Tribunal. The Tribunal considers the determinative issue in the applicants’ case has changed as a current Confirmation of Enrolment has not been provided. It is the applicant’s responsibility to ensure they are complying with the conditions of their visa at all times.

19. The Tribunal has no evidence of a current Confirmation of Enrolment which would establish the applicant meets the essential requirement under clause 500.211 (a). 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. 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 criteria are met under clause 500.212.

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.

    D. Triaca
    Member