GAO (Migration)

[2018] AATA 228

GAO (Migration) [2018] AATA 228 (19 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HUILONG GAO

CASE NUMBER:  1618864

DIBP REFERENCE(S):  BCC2016/2387932

MEMBER:Jennifer Cripps Watts

DATE:19 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 January 2018 at 2:13pm

CATCHWORDS
Migration – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – Not genuine temporary entrant – No evidence of current enrolment in study – No evidence of offer of enrolment – Enrolled in multiple courses that were all cancelled – Has not engaged with Tribunal at all

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 500.211, 500.211(a), 500.212, r 1.03

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 24 October 2016 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 18 July 2016. 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 delegate was not satisfied the applicant is a genuine temporary entrant.

4. The visa that is the subject of this review was refused on 24 October 2016.  The applicant applied for review by this Tribunal on 10 November 2016, within time, and provided the Tribunal with a copy of the Department’s decision to refuse his student visa.  The applicant’s matter was constituted to this member on 22 November 2017 and a written invitation to attend a hearing was sent to the applicant on 7 December 2017, attaching a copy of an extract from the Migration Act 1958, Direction Number 69 – Assessing the Genuine Temporary Entrant criterion for Student Visa and Student Guardian Visa Applications, for his ease of reference. 

5. The invitation to the hearing also included information relating to what types of evidence and statements the applicant should consider providing to the Tribunal before his hearing, specifically addressing the issue of whether he “...is a genuine applicant for entry and stay as a student by referring to Direction No.69.”  The applicant was informed he should provide a copy of his current Certificate of Enrolment (COE).  The applicant did not respond to the hearing invitation or provide the Tribunal with documentary information in support of his application prior to the hearing.  Prior to the hearing, the applicant did not provide a COE.  Nor did he provide a  written statement addressing the matters in Direction 69.

6. The applicant did not respond to the hearing invitation or engage with the Tribunal at any time since lodging his application for review.  He did not appear before the Tribunal at the scheduled hearing at 11:30am on 19 January 2018.  No reason was given for the non-appearance.  No request for postponement was made.

7. For the following reasons, the Tribunal has concluded that the 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 in the present case is whether the applicant has a COE indicating he is currently enrolled in a course of study: cl.500.211, and whether he is a genuine temporary entrant: cl.500.212.

   Background

9. The applicant is a 30 year old Chinese citizen.  In his application for the student visa that is the subject of this review he declared he has never been married.  He indicates that he has no non-accompanying family members and that he has no “other” family members , that is, parents or siblings, living outside Australia. 

10. However, he also included in his application, regarding his funding for stay, “I have savings and my parents will support me”.  The Tribunal considers that the veracity of the information he has provided the Department in this regard to be unreliable for inconsistency.  The information contained in his written application lodged on 18 July 2016 does not appear, as it is required to be, “complete and correct” with regard to whether or not the applicant has any parents or siblings, that is, “other family members” or that his parents will support him financially.  If he does have parents, he did not declare them as other family members.  If his parents are deceased, they cannot, it is reasonable to think, be supporting him financially.

11. The Tribunal invited the applicant to a hearing in the written invitation dated 7 December 2017.  At the time of this decision, the applicant has not responded to the hearing invitation, nor has he provided any documents to the Tribunal in support of his application for merits review or engaged with the Tribunal in any way.

12. The Tribunal, in reaching its decision, has had regard to the delegate’s decision which was provided to the Tribunal with his application for review.  At the time of application the applicant had resided in Australia on a student or related bridging visa.  He had at no time been unlawful.

13. The following matters are highlighted as being of concern in the delegate’s decision relating to the genuine temporary entrant criteria:

    a.The has enrolled in multiple courses that were all cancelled:

    i.General English, cancelled for unsatisfactory course progress

    ii.English for Academic Purpose, cancelled for non-commencement of studies

    iii.Master of Business Administration, cancelled due to non-commencement of studies

    iv.Diploma of Leadership and Management – cancelled due to unsatisfactory course progress

14. It is noted in the delegate’s decision that the only course the applicant had completed during the period 2014 to 2016 was a general English course and that there was a significant study gap of over one year, from 24/07/2014 to 17/08/2015.

    Enrolment (cl.500.211)

    The paragraphs below are intended for applications where the criterion in dispute is whether the applicant is enrolled in a course of study (cl.500.211(a)). Where the applicant seeks to satisfy the alternative criteria relating to postgraduate thesis marking, Foreign Affairs students or Defence Students (cl.500.211(b) to (d) respectively), adjust the following 3 paragraphs to reflect claims, evidence and findings on the relevant criteria.

15. 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.

16. ‘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.

17. The applicant was invited, in writing, to provide information in support of his application, it was clearly that he needed to provide a COE.  There is no evidence that has been provided to the Tribunal that the applicant is currently enrolled in a course of study or has received an offer of enrolment. 

18. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study.  Accordingly cl.500.211 is not met.

19. As the applicant does not meet this threshold criterion, it is not necessary to make findings against cl.500.212.

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.

    Jennifer Cripps Watts
    Member