Filipi (Migration)

[2020] AATA 5013

Filipi (Migration) [2020] AATA 5013 (20 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Elbarina Filipi

CASE NUMBER:  1932542

DIBP REFERENCE(S):  BCC2019/4703256

MEMBER:Elizabeth Tueno

DATE:20 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 20 November 2020 at 12:34pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 590 (Guardian) – genuine temporary entrant – student child currently offshore and unable to return due to COVID-19 travel restrictions – never held a student visa and bridging visa expired, so not a nominating student – no response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 590.111, 590.215(a)

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 Immigration on 4 November 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 590 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 September 2019. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant met the genuine temporary entrant requirement for a student guardian visa. 

3. The applicant sought a review of this decision by the Tribunal. It is noted that the applicant has been represented in relation to the review by her registered migration agent.

4. The matter was originally listed for hearing by telephone due to the Covid-19 restriction on 7 September 2020.  On 26 August 2020, the applicant provided the Tribunal with a response to the invitation to attend the hearing, stating that she would not be attending the hearing.  The Tribunal was informed that the applicant’s son who was to study in Australia (and for whom she intended on being the student guardian) is currently overseas and is unable to return to Australia due to the Covid-19 travel restrictions.  His bridging visa has now expired.  The applicant consented to the Tribunal making a decision on the papers without taking further steps to allow her to appear.  The Tribunal has proceeded to make a determination in this manner. 

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 590 student guardian visa are set out in Part 590 of Schedule 2 to the Regulations. The issue in the present case is whether the applicant intends genuinely to stay in Australia temporarily.

7. Clause 590.215 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student guardian because:

   (a)     The applicant intends genuinely to stay in Australia temporarily, having regard to:

   i.the applicant’s circumstances; and

   ii.the applicant’s immigration history; and

   iii.any other relevant matter; and

   (b)    The applicant intends to comply with any conditions to which the visa may be subject, having regard to:

   i.the applicant’s record of compliance with any condition of a via previously held by the applicant (if any); and

   ii.the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)     of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

8. In considering whether the applicant satisfies cl.590.215(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:

   ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

9. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

10. The Tribunal has had regard to the documents and information provided by the applicant to the Tribunal as well as to the contents of the Departmental file.

11. While the issue before the delegate was whether the applicant is a genuine temporary entrant, the issue before the Tribunal now is whether at the time of this decision, she meets the requirement to have been nominated for the student guardian visa by a nominating student.

12. The criteria for a Subclass 590 (student guardian) visa are set out in Part 590 of Schedule 2 to the Regulations.  The primary criteria in cl.590.211 to cl.590.219 must be satisfied by the applicant.  The issue in this case is whether or not the applicant has been validly nominated as a student guardian by a student.

13. Clause 590.111 defines “nominating student”, for an applicant, to mean a person who:

    (a)  Nominates the applicant on form 157N; and

    (b)  At the time of decision for the applicant, hold a student visa that was granted on the basis that the person met the primary criteria for the grant of the student visa. 

14. In this matter, the applicant has applied for a student guardian visa on the basis that she meets cl590.211(2) as she is the parent of a child under the age of 18 and she is able to provide her child with appropriate accommodation and support and provide for his general welfare.

15. The applicant’s son who applied for the student visa is Kevin Zalli, who is currently 15 years old and was born on 16 December 2004.  He and his mother are both residents of Italy.  The applicant provided evidence of her financial circumstances and it would appear she has the means to support him and provide for his general welfare while her son undertakes his studies in Australia. 

16. However, on 26 August 2020, the applicant’s migration agent informed the Tribunal that the applicant’s son, Kevin Zalli, is currently offshore and is unable to return to Australia due to the Covid-19 travel restrictions.  They advised that Kevin Zalli’s bridging visa has now expired.

17. On 5 November 2020 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting the review applicant to comment on information that it considered would be part of the reason for affirming the decision under review in writing.  The information the applicant was invited to comment on was a history of the applicant’s son’s visa history (the nominating student) from the Integrated Client Services Environment (ISCE), which showed that the he does not hold, and has never held, a student visa.  Without a nominating student who holds a student visa, the applicant is not eligible for the grant of a student guardian visa. 

18. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 19 November 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

19. The review applicant has not provided the comments within the prescribed period and no extension has been granted. 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 decision without taking further steps to obtain the comments.

20. Accordingly, there is no evidence before the Tribunal that the applicant’s son, Kevin Zalli, holds a student visa and that he is a nominating student within the meaning of the Regulations.  The evidence before the Tribunal is that the nominating student does not hold, and has never held, a student visa.  Therefore, the applicant is unable to meet the primary criteria that she be the parent of a nominating student. 

21. Given the above finding, the Tribunal finds that the criteria for the Grant of a Subclass (student guardian) visa are not met.  For these reasons, the Tribunal finds that the decision under review should be affirmed. 

    DECISION

22. The Tribunal affirms the decisions not to grant the applicant a Student Guardian (Temporary) (Class TU) visa.

    Elizabeth Tueno
    Member