CRANSHAW (Migration)

[2024] AATA 995

CRANSHAW (Migration) [2024] AATA 995 (2 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nicholas Ryan Cranshaw

CASE NUMBER:  2210860

HOME AFFAIRS REFERENCE(S):          BCC2021/499663

MEMBER:Michael Bradford

DATE:2 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 02 April 2024 at 9:44am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment status – no response to s.359A invitation – not enrolled in a registered course of study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 500.111, 500.211, 500.212

CASES
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application to review a decision of a delegate of the Minister for Home Affairs who, on 8 July 2022, refused to grant to 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 6 April 2021 but the delegate refused to grant it on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he was not a genuine temporary student in Australia.

3. The Review Application was filed on 28 July 2022 and is within time but, for the following reasons, I have concluded that the decision under review should be affirmed.

   PROCEDURAL ASPECTS

4. By letter dated 3 October 2023 the Tribunal, pursuant to Sec 359(2) of the Act, invited the applicant to provide, by 17 October 2023, information to support his review case, including information to establish that he was currently enrolled in a registered course of study. Among other things, the letter stated that if he did not respond to the request by that date or within such extended time as the Tribunal may allow a decision could be reached without having to take any further action to obtain the information.

5. On 19 October 2023 the Tribunal obtained a PRISMS record relating to his academic history and on 25 October 2023, pursuant to Sec 359A of the Act, invited him to comment on the information in that record which indicated that he was not currently enrolled in a registered course of study. The invitation called for a response by 9 November 2023 and stated that if he did not respond or comment within the time allowed the Tribunal could decide the review without taking any further action to obtain his views on the information.

6. As the applicant did not respond to the 359(2) request or to the 359A invitation, within the times allowed or at all, by virtue of the combined operation of Secs 359C and 360(3) of the Act, he has lost the right to appear before the Tribunal to present his case and indeed, by virtue of Sec 363A of the Act, the Tribunal has no power to permit him to do so; see Hasran v MIAC [2010] FCAFC 40.

7. This being the case the Tribunal must conduct the review on the papers.

   Approaching the issues, the regulatory requirements  

8. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by the applicant.

9. Clause 500.211 relevantly requires that at the time of this decision the applicant be enrolled in a course of study: clause 500.211(a).

10. “Course of study” is relevantly defined in clause 500.111 of the Regulations as a “full-time registered course”. “Registered course” is defined in Regulation 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.

    Evidence and findings

11. The only issue which the Tribunal need decide on this review is whether the applicant is currently enrolled in such a course.

12. As is stated in the Sec 359A invitation, the Tribunal has documentary evidence in the form of the PRISMS record which indicates that the applicant is not currently enrolled in such a course. According to this record, the applicant’s last enrolment was in a Certificate III in Wall and Floor Tiling which enrolment was cancelled by the provider on 13 July 2022 because he no longer held a student visa. According to this record he has not been enrolled in any other course of study since that date.

13. No reason has been advanced by the applicant as to why I should not rely on that evidence in this case.

14. In these circumstances I consider that the information in PRISMS is reliable and that, consequently, am not satisfied that the applicant is currently enrolled in an acceptable course of study, Accordingly, I find he does not meet the requirements of clause 500.211 of the Regulations.

15. This being so, it is unnecessary for me to consider the issue of whether he is a genuine temporary student in Australia as the outcome of that issue cannot alter the outcome of the review.

16. Given the above findings, the Tribunal concludes that the criteria for the grant of a Subclass 500 (Student) visa are not met in this case.

17. As the applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa, the decision under review must be affirmed.

    DECISION

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

    Michael Bradford
    Member