Du (Migration)

[2019] AATA 4289

Du (Migration) [2019] AATA 4289 (30 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Zhixiang Du

CASE NUMBER:  1900244

HOME AFFAIRS REFERENCE(S):           BCC2018/3559775

MEMBER:Peter Booth

DATE:30 September 2019

PLACE OF DECISION:  

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

Statement made on 30 September 2019 at 3:42pm

CATCHWORDS

MIGRATION – refusal – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – no response to Tribunal communication – enrolment in course of study – no evidence of current enrolment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2), 359C, 360(3), 363A

Migration Regulations 1994 (Cth), Schedule 2, cls 500.211(a), 500.212

CASE

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 21 December 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 19 September 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.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not a genuine temporary entrant.

4. On 2 September 2019 the Tribunal wrote to the applicant pursuant to s.359 (2) of the Act, inviting the applicant to provide information about the review application 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 September 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 is currently enrolled in a registered course of study.

   Enrolment (cl.500.211)

8. 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.

9. ‘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.

10. The applicant did not respond to a request from the Tribunal to provide information in support of the application for review. A perusal of the Department file discloses several things of relevance. First in the application for a student Visa the applicant asserted that she held confirmation of enrolment documents in three courses namely “9FD84F51”, “9FE67629” and “9FE64942”. Confirmation of enrolment documents in relation to these three courses are to be found on the Department file. The first course, a diploma of leadership and management is stated to be conducted between 29 July 2019 and 13 November 2020. The second cause is a general English course and which is stated to be conducted during the period 15 October 2018 to 14 June 2019. The third course is another general English course to be conducted between the period 17 September 2018 to12 October 2018. The decision of the delegate refusing the application for a student Visa is dated 21 December 2018. Amongst other things that decision refers to 3 courses which, by their general description, appear to be the courses referred to above although the course identification codes are not rehearsed in the decision. However the Tribunal is satisfied that as at the date of the delegate’s decision, namely 21 December 2018, the applicant satisfied the delegate that she was enrolled in several registered courses of study. However there was no evidence that the applicant has maintained that enrolment in those courses or enrolled in any other courses. This is a critical matter of which the tribunal must be satisfied at the time of making this decision. There is no evidence of a current enrolment in a registered course of study to the satisfaction of the Tribunal. 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.

11. 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

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

    Peter Booth
    Member