Chen (Migration)

[2020] AATA 5777

Chen (Migration) [2020] AATA 5777 (8 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Youxiong Chen

CASE NUMBER:  1905777

HOME AFFAIRS REFERENCE(S):          BCC2018/5037764

MEMBER:Mark O'Loughlin

DATE:8 September 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 08 October 2020 at 12:54pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– declined to undertake a health examination– no evidence of health insurance– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 362, 368
Migration Regulations 1994, Schedule 2, cls 500.215, 500.217

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 22 February 2019 a delegate of the Minister for Home Affairs decided under s.65 of the Migration Act 1958 (the Act) to refuse to grant the applicant a Student (Temporary) (Class TU) visa. This is an application for review of that decision.

2. The applicant applied for the visa on 13 November 2018. 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.500.215 or cl.500.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The delegate found that there was no evidence that the applicant had adequate arrangements in Australia for health insurance during the period of his intended stay and therefore the applicant did not satisfy cl.500.215 of schedule 2 to the regulations.

5. Delegate further found that the applicant falls within the class of persons required to undergo medical examination in order to comply with Public Interest Criterion 4005 in schedule 4 to the regulations. The delegate found that the applicant had not provided any evidence of having undergone relevant medical examination and did not therefore satisfy Public Interest Criterion 4005. The delegate further found that because the applicant does not satisfy that provision, the applicant does not satisfy cl. 500.217.

6. On 20 March 2019 the registry of this Tribunal wrote to the applicant inviting him to provide evidence that he meets the health requirements by arranging to have the relevant health examinations and providing evidence of the outcome thereof to the Tribunal.

7. The applicant did not respond to that invitation.

8. On 19 August 2020 the applicant was again invited to seek evidence of the relevant health examination and provide it to the Tribunal.

9. On 20 August 2020 the applicant’s registered migration agent sent an email to the Tribunal indicating that the applicant had declined to undertake a health examination.

10. On 1 September 2020 applicant was invited to appear before the Tribunal on 23^rd September 2020 by video to give evidence and present arguments.

11. On 11 September 2020 the applicant’s registered migration agent indicated that the applicant “again declines to attend”. It was not clear to the Tribunal whether the applicant declined to attend the hearing or “again” declined to attend a medical examination.

12. On the basis of the ambiguity of the applicant’s response, the Tribunal elected to attempt to proceed with the hearing.

13. The applicant failed to join the hearing within 20 minutes of its starting time and so his failure to attend was noted and the hearing was cancelled.

14. The Tribunal finds that the applicant was properly advised of the date and time of the hearing and notes in that regard that the applicant’s registered migration agent had replied to the Tribunal’s correspondence in relation to the listing of the matter for hearing. There was no suggestion that the time or mode of hearing presented a difficulty for the applicant and it now appears that the applicant had probably resolved not to attend.

15. In the circumstances the Tribunal elects to proceed to make a decision on the review under section 368 as contemplated by section 362B(1A) (a).

16. In making this decision the Tribunal has relied on documents that were provided by the applicant being;

    a.a copy of the decision of the delegate dated 22^nd of February 2019;

    b.emails from the applicant’s registered migration agent dated 20^th of August 2020 and 11^th of September 2020.

17. There is no evidence before the Tribunal that the applicant has arranged for relevant health insurance or undertaken relevant health examinations.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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. The issue in the present case is whether the applicant satisfies cl. 500.215 and cl.500.217.

19. There is no evidence before the Tribunal that the applicant has obtained any health cover and the Tribunal finds that the applicant does not therefore satisfy cl. 500.215.

20. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500. 215.

21. The Tribunal finds the applicant falls within a class of applicants who must undergo specified health examinations in order to satisfy public interest criterion 4005. There is no evidence before the Tribunal that the applicant has undergone the relevant health examinations.

22. The Tribunal is not satisfied that the applicant meets public interest criterion 4005 and does not therefore satisfy cl.500.217.

23. Given the above finding 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

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

    Mark O'Loughlin
    Member