Dajti (Migration)

[2019] AATA 2588

Dajti (Migration) [2019] AATA 2588 (17 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Mirlinda Dajti
Mr Arben Dajti
Master Kejvin Dajti

CASE NUMBER:  1729850

HOME AFFAIRS REFERENCE(S):           BCC2017/3317271

MEMBER:Mark Bishop

DATE:17 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 17 May 2019 at 3:23pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – no response to s 359(2) invitation – not entitled to appear before the Tribunal – genuine temporary entrant – enrolment status – no evidence of enrolment at time of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

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 13 November 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 12 September 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 applicant appeared to be using the student visa program as a means of extending his stay in Australia and did not genuinely intend to stay in Australia temporarily as a full time student.

4. The applicant provided a copy of the decision record to the Tribunal. The decision record contained a copy of the applicant’s immigration, enrolment and education history.

5. On 28 February 2019 the Tribunal formally wrote to the review 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 applicant did not provide any information in respect of the s.359(2) request. The Migration Agent (MA) for the applicant advised the Tribunal the applicant returned to Italy for medical treatment. The applicant advised the MA it was unlikely she would return to Australia. The MA advised the applicant had discontinued her studies.

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.  That invitation stated that it is a requirement of the student visa that the applicant is enrolled in a course of study and that the applicant is a genuine applicant for entry and stay as a student and requested information which goes towards both criteria. The invitation was sent to the review applicant’s nominated address, being the address provided by the review applicant in connection with this application for review. 

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: section 359C(1).

8. The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3). Crucially, 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 the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

9. It is appropriate to highlight that a decision maker is not required 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.

10. In these circumstances, the Tribunal has proceeded to make a decision having regard to the information before it, including the information previously provided by the applicant to the Department.

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

    Enrolment (cl.500.211)

12. 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. The issue in the present case is evidence of enrolment in a course of study.

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. In his application for a student visa the applicant advised he held a Confirmation of Enrolments (COE) in a course of study. He provided COE numbers 9072bd97 for enrolment in a Master of Business Administration. He advised the Department in writing he did not hold evidence of his intended study in Australia other than the COE (Df: 15). This particular COE expired on 31 December 2017. He did not provide any further documentation or information to the Tribunal as to any future enrolment after December 2017.

16. On 28 February 2019 the Tribunal wrote to the applicant and advised it is a requirement of the visa for you to be “enrolled in a registered course of study and a genuine applicant for entry and stay as a student”. The Tribunal asked the applicant to provide “…information, in writing about the course(s) of study you are undertaking…”

17. On 28 February 2019 the Tribunal wrote to the applicant and advised “…not  being enrolled in a registered course of study may be a reason, or part of a reason, for the Tribunal affirming the decision under review , even if this is not the same criteria or issue considered by the primary decision maker”.

18. The applicant did not respond to the advice outlined in paragraphs 16 and 17 above.

19. The applicant did not provide a copy of a current COE to the Tribunal. The applicant did not provide any evidence of enrolment in a course of study to the Tribunal. The applicant did not provide a statement to the Tribunal that she was currently enrolled in a course of study. The applicant did not provide a statement to the Tribunal that she proposed to engage in any study in the future in Australia. The applicant did not respond to the request for information made pursuant to s.359 (2) of the Act. The applicant provided advice through her MA as outlined in paragraph 5 above.

20. There is only limited information available to the Tribunal.  There is no additional information (excluding the information discussed above) relevant to the review application that was not provided to the Department before the Tribunal that postdates the delegate’s decision of 13 November 2017.

21. As outlined above the applicant provided a copy of the delegate’s decision to the Tribunal. The applicant did not challenge any of the findings of the delegate. The applicant did not make any contribution or statement to the Tribunal that pointed out any errors in the decision of the delegate.

22. The applicant has not provided a current COE to the Tribunal.

23. Therefore the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study.

24. 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.

25. 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

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

    Mark Bishop
    Member