DE SOUZA (Migration)

[2019] AATA 2985

DE SOUZA (Migration) [2019] AATA 2985 (27 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Valdinei Antonio DE SOUZA
Ms Rosemeyre RODRIGUES DOS SANTOS
Ms Micaelly RODRIGUES DOS SANTOS

CASE NUMBER:  1721971

HOME AFFAIRS REFERENCE(S):          BCC2017/2860832

MEMBER:Margaret Forrest

DATE:27 June 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 27 June 2019 at 11:28am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met – not enrolled in any course of study– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.111, 500.211, 500.212, 500.311
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 Immigration and Border Protection on 28 August 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 10 August 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 visas on the basis that the applicant (Mr Valdinei Antonio DE SOUZA) 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 intends genuinely to stay temporarily in Australia.

4. On 2 April 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about the course(s) of study he was undertaking and his entry and stay in Australia as a student, in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the prescribed period, being 16 April 2019, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking 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 arguments.

5. The review applicant did not provide the information within the prescribed period and no extension of time was requested. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

6. 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. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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 before the delegate was whether the applicant is a genuine temporary entrant. The issue before the Tribunal has changed to become whether the applicant is enrolled in an approved course of study as required for the grant of a student visa.

   Enrolment (cl.500.211)

9. 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.

10. ‘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.

11. According to the delegate’s decision, the applicant is currently 34 years old.  The applicant came to Australia on 13 May 2017 on an ETA 601 visa.  The applicant lodged his student visa application on 10 August 2017.  The applicant proposed to study 3 x General English courses and a Certificate IV in Project Management Practice. 

12. On 2 April 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about the course(s) of study he was undertaking and his entry and stay in Australia as a student, in writing. The invitation was sent to the last address provided in connection with the review.

13. The review applicant did not provide the information within the prescribed period and no extension of time was requested.  There is no confirmation of enrolment certificate or any other document showing enrolment in a course of study on the Department file.  According to the delegate’s decision, “[a]n assessment of your Student Visa application was undertaken on 28 August 2017 and Departmental checks undertaken located no further documents supporting your application have been received.  Therefore, the basis of this decision rests on the information currently before the Department.”

14. The applicant has not provided any confirmation of enrolment certificate or other document showing enrolment in a course of study to the Tribunal. 

15. The Tribunal finds there is no evidence that the applicant is enrolled in an approved course of study as required for the grant of a student visa.  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.

16. 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.

17. As the applicant was found not to meet  cl/500.212, the Tribunal finds that the secondary applicants Ms Rosemeyre RODRIGUES DOS SANTOS and Ms Micaelly RODRIGUES DOS SANTOS do not satisfy cl.500.311.  As secondary applicants Ms Rosemeyre RODRIGUES DOS SANTOS and Ms Micaelly RODRIGUES DOS SANTOS have been found not to satisfy cl.500.311, no further assessment with regard to these applicants has been undertaken.  

18. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Margaret Forrest
    Member