Chaudhary (Migration)

[2019] AATA 2134

Chaudhary (Migration) [2019] AATA 2134 (25 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bishnu Chaudhary

CASE NUMBER:  1702784

HOME AFFAIRS REFERENCE(S):           BCC2016/4138544

MEMBER:Genevieve Cleary

DATE:25 February 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 25 February  2019 at 4:46pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary student – 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), r 1.03; Schedule 2, cls 500.111, 500.211, 500.212, 500.218

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 6 February 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 7 December 2016. 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 is a genuine full-time student.

4. On 9 January 2019 the tribunal wrote to the review applicant pursuant to section 359(2) of the Act inviting the applicant to provide confirmation of current enrolment in a course of study.  The invitation was sent to the last email address provided in connection with the review and advised that if the information was not provided in writing by the prescribed period, being 23 January 2019, or within any extended time as requested and granted, the Tribunal may make a decision on the review without 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 their arguments.

5. The review applicant did not provide the information within the prescribed period.  The Tribunal received two telephone calls from relatives of the applicant and the applicant on 15 February 2019.  The family member told the Tribunal that the applicant did not understand the letter he had received on 9 January 2019, and asked if the applicant could still supply information.  The applicant’s family member was told that the applicant was out of time, however that further information could still be sent to the Tribunal, but that  it was for the Tribunal member to determine what would occur if that further information was supplied. The Tribunal has not received any information, contact or request for an extension of time since those calls.   

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, and the review applicant did not provide any information within the prescribed time, or at all.

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 to obtain the information: section 359C(1).  Pursuant to section 360(3) the review applicant is not entitled to appear before the Tribunal. 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 him to appear: Hasran v MIAC [2010] FCAFC 40.

8. It is not for the Tribunal 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 in 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.

9. In these circumstances the Tribunal has had regard to section 359C(1) and decided to proceed to decision without taking further steps to obtain the information.  The Tribunal has had regard to all the information before it, including the information previously provided by the applicant to the Department.

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. While the issue before the delegate was whether the applicant is a genuine temporary student entrant, the issue for the Tribunal has become whether, at the time of decision, the applicant meets the enrolment requirement in cl. 500.211(a) for a student visa.

12. 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.

13. ‘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.

14. While the delegate was provided with confirmation of enrolment for the year 2017 through to 12 January 2018, the Tribunal, despite its written request on 9 January 2019, has not received any confirmation of current enrolment.  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.

15. 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

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

    Genevieve Cleary
    Member