Dong (Migration)

[2019] AATA 5699

Dong (Migration) [2019] AATA 5699 (13 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Airui Dong

CASE NUMBER:  1832957

HOME AFFAIRS REFERENCE(S):          BCC2018/2909366

MEMBER:Roger Maguire

DATE:13 December 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 13 December 2019 at 12:42pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Public Interest Criterion 4012A – appropriate welfare arrangements while under 18 – refusal of mother’s guardian visa affirmed by tribunal – no response to tribunal’s communication – no request for extension of time – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), ss 65, 363(1)(b)

Migration Regulations 1994 (Cth), Schedule 2, cl 500.217, criterion 4012A

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Kaur v Minister for Immigration and Border Protection [2014] FCA 915

Manna v Minister for Immigration and Citizenship [2012] FMCA 28

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

Minister for Immigration and Citizenship v Li [2013] HCA 18

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 19 October 2018 to refuse to grant 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 3 August 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. 500.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant had not provided evidence of appropriate welfare arrangements for the full duration of the Student visa being sought whilst the applicant remains under 18 years of age. Therefore the applicant did not meet public interest criteria 4012A, and consequently did not satisfy regulation 500.217.

4. The applicant appeared before the Tribunal on 21 November 2019 to give evidence and present arguments. The review was heard jointly with an application by the applicant’s mother Dongmei Pang for a Student (Temporary) (Class TU) Subclass 590 visa. The Tribunal also received oral evidence from the applicant’s father, Mr Dong Chunyang and a family friend Ms Jie Zhie. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 whether the applicant meets public interest criteria 4012A, and consequently satisfies regulation 500.217.

7. Clause 500.217 in Schedule 2 of the Migration Regulations provides that:

   500.217

   (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.

   (2) If the applicant has not turned 18, public interest criteria for 4012A, 4017 and 4018 are satisfied in relation to the applicant.

   (3) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

   (4) The applicant (other than a Foreign Affairs student or a Defence Student, satisfies public interest criterion 4007.

8. Schedule 4 – Public Interest Criteria and related provisions of the Migration Regulations state:

   In the case of an applicant who has not turned 18 and who is not a Foreign Affairs student or a Defence student:

   (a)  the application expresses a genuine intention to reside in Australia with a person who:

   (i)is a parent of the applicant or a person who has custody of the applicant; or

   (ii)is:

   (A)  a relative of the applicant; and

   (B)  nominated by a parent of the applicant or a person who has custody of the applicant; and

   (C)  aged at least 21; and

   (D)  of good character; or

   (b)  a signed statement is given to the Minister by the education provider for the course in which the applicant is enrolled confirming that appropriate arrangements have been made for the applicant’s accommodation, support and general welfare for at least the minimum period of enrolment stated on the applicant’s:

   (i)certificate of enrolment; or

   (ii)electronic confirmation of enrolment; or

   (iii)Acceptance Advice of Secondary Exchange Student (AASES):

   +7 days after the end of that period.

9. PIC 4012A provides that the person and factored by the risk factor or in clause 4012A satisfies the decision-maker that students who are not accompanied by a parent/custodian (or who will not be staying with a nominated relative at least 21 years old and of good character) to obtain, from each education provider with which they are enrolled while under 18 years old, confirmation that appropriate arrangements have been made for the accommodation, support and general welfare.

10. On 28 November 2019, the Tribunal sent an invitation to the applicant to comment on or respond to information that on 28 November 2019, the Tribunal affirmed the decision not to grant Dongmei Pang a Student (Temporary) (Class TU) visa, and explained that this information was relevant to the review because this was the intended appropriate welfare arrangements for the full duration of the applicant’s Student visa whilst remaining under 18 years of age. The applicant was advised that if the Tribunal relied on the information in making its decision, the Tribunal might find that the applicant was unable to meet Public Interest Criteria 4012A in order to satisfy tours 500.217 (a requirement for the grant of the visa), and may affirmed the decision under review.

11. The invitation of 28 November 2019 invited the applicant to give comments on or respond to the above information in writing by 12 December 2019, or to request an extension of time if the applicant was unable to provide the comments or response by 12 December 2019.

12. The applicant did not respond to the invitation of 28 November 2019, and neither did the applicant make any request for an extension of time in which to do so.

13. The Tribunal has considered whether, in the circumstances of this case, information that the applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide relevant information already.

14. The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered analogous issues, as well as the decision of Kaur v Minister for Immigration and Border Protection.[5]

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

15. In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the applicant has had a fair opportunity to provide relevant information.

16. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the review applicant to the Department.

17. The applicant has not provided evidence of appropriate welfare arrangements for the full duration of the Student visa being sought whilst the applicant remains under 18 years of age.

18. Therefore the applicant does not meet Public Interest Criteria 4012A, and consequently does not satisfy regulation 500.217.

19. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.217.

20. 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

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

    Roger Maguire
    Member