Cherkawi (Migration)

[2020] AATA 3637

Cherkawi (Migration) [2020] AATA 3637 (13 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Houssein Cherkawi

CASE NUMBER:  1921983

HOME AFFAIRS REFERENCE(S):          BCC2019/2857011

MEMBER:D. Shirrefs

DATE:13 July 2020

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 13 July 2020 at 4:20pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–   applicant failed to provide the requested information within the prescribed period – genuine temporary entrant criterion not met–not currently enrolled in a registered course of study –no current confirmation of enrolment– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212

Education Services for Overseas Students Act 2000

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 Home Affairs on 24 July 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under section 65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 4 June 2019. 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 they were not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. On 14 May 2020 the Tribunal wrote to the 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. The Tribunal did not receive any response to the written invitation to provide further information.

5. 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 applicants registered migration agent at the email address provided by the applicant in relation to this application for review.

6. 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).

7. The Tribunal finds that the applicant did not provide further information as requested.  In the circumstances, the applicant isn’t entitled to appear before the Tribunal: section 360(3).  Importantly, pursuant to section 363A of the Act, if a review applicant has no entitlement to hearing, the Tribunal has no power to permit the applicant to appear before it: 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 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 for the purposes of making the administrative decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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).

11. ‘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.

12. The applicant does not claim to meet any of the alternative criteria in cl.500.211.

13. There is no recent evidence before the Tribunal on which it could be satisfied that the applicant is enrolled in a course of study as required by cl.500.211.  Therefore, the Tribunal cannot be satisfied that, at the time of this decision, the criteria for the grant of a Subclass 500 (student) visa are met.

14. The applicant does not claim to meet the criteria for a sub-class 590 (Student Guardian) visa.

15. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met.  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.

    D. Shirrefs
    Member