Ghouri (Migration)

[2019] AATA 4727

Ghouri (Migration) [2019] AATA 4727 (11 July 2019)

-DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Ahmed Khan Ghouri

CASE NUMBER:  1732757

DIBP REFERENCE(S):  BCC2017/3582979

MEMBER:Tim Connellan

DATE:11 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 11 July 2019 at 2:38pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – no response to Tribunal’s communication – no current enrolment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2), 359C(1), 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211(a), 500.212(a)

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 on 13 December 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 30 September 2017. The delegate refused to grant the the visa on the basis that that the review applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. On 8 April 2019 the Tribunal wrote to the review applicant pursuant to section 359(2) of the Migration Act inviting him to provide further information to the Tribunal, including evidence of current enrolment as required by cl 500.211(a).

4. The applicant provided no response.

5. The Tribunal is satisfied the review applicant was properly invited to provide further information under section 359(2) of the Act. The invitation was sent to the review applicant’s nominated address, being the address provided by the review applicant in connection with this application for review.

6. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1).

7. The Tribunal finds that the review applicant did not provide evidence of enrolment as requested.

8. In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

9. 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.

10. 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.

11. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information before it, including the information previously provided by the applicant to the Department.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.14. Clause 500.211 provides:

    500.211 One of the following applies:

    (a) the applicant is enrolled in a course of study;

    (b) if the application is made in Australia—the applicant is seeking to remain in Australia
    because the relevant educational institution requires the applicant to do so during the
    marking of the applicant’s postgraduate thesis;

    (c) if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign
    Minister for the grant of the visa;

    (d) if the applicant is a Defence student—the applicant has the support of the Defence
    Minister for the grant of the visa.

13. The Tribunal was provided with a copy of the Department file. The Tribunal has also read and had regard to delegate’s decision record, a copy of which was provided to the Tribunal by the applicant with his application for review.

14. Critically, the Tribunal does not have before it evidence of current enrolment. As such, the Tribunal is not satisfied that the applicant is presently enrolled in a course of study as required by cl.500.211(a).

15. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

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

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (ClassTU) visa.

    Tim Connellan
    Member