Gourav Singh (Migration)

[2020] AATA 5035

Gourav Singh (Migration) [2020] AATA 5035 (16 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gourav Singh

CASE NUMBER:  2001545

HOME AFFAIRS REFERENCE(S):          BCC2017/3133746

MEMBER:Peter Haag

DATE:16 September 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 16 September 2020 at 10:16pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit Court remittal – genuine temporary entrant as student – current enrolment – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212; r 1.03

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 and Border Protection on 31 October 2017 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 30 August 2017. 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.

   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 that the applicant intends genuinely to stay temporarily in Australia.

3. This matter comes before the Tribunal for reconsideration pursuant to Orders of the Federal Circuit Court made on 24 January 2020.

4. On 24 July 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information in writing about the Student visa and, in particular, sufficient information to satisfy the Tribunal that the applicant is enrolled in a registered course of study; and, is a genuine applicant for entry and stay as a student. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by the end of the prescribed period, being 7 August 2020, 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 he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The review applicant did not provide the information within the prescribed period and no extension of time was requested.

5. On 9 September 2020 the applicant’s migration agent corresponded with the Tribunal by email on behalf of the applicant: the agent said he will “get the information to you [the Tribunal] as soon as possible.”  The agent did not provide a time when the information he had in contemplation would be provided or give any reason for the information not being provided to date. In view of the agent’s email, it is evident the s.359(2) request was properly served on the applicant, and the Tribunal is satisfied it was properly served.

6. On 10 September 2020 the Tribunal corresponded with the applicant via his registered migration agent and informed him that the scheduled hearing of his review had been cancelled due to his failure to respond in time to the s.359(2) request for Student visa information. Nevertheless, the applicant was urged to submit, as a matter of urgency, any documents he wanted the Tribunal to consider. The applicant was also informed the Tribunal may make a decision at any time. The applicant did not provide any documents to the Tribunal in response to this correspondence, nor did the applicant respond to the correspondence.

7. Giving regard to the circumstances considered above the Tribunal is satisfied s.359C of the Act applies, and pursuant to s.360(3) of the Act 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 because the applicant’s failure to respond to the s.359(2) request, and his failure, without explanation, to provide documents within a reasonable time of the transmission of the Tribunal’s invitation to provide documents dated 10 September 2020, indicates the applicant is content for the Tribunal to proceed to a decision on the available information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 course of study.

10. 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.

11. ‘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.

12. For the purpose of determining whether the applicant is currently enrolled in a course of study the Tribunal has considered the contents of the Department file and the Tribunal file. There is no evidence in either file, such as a Confirmation of Enrolment document or other documentation or evidence that establishes to the satisfaction of the Tribunal that the applicant is currently enrolled in a course of study. Therefore, on the evidence before the Tribunal, 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.

13. 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.

14. 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

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

    Peter Haag
    Member