Guerreiro Pereira (Migration)

[2019] AATA 3224

Guerreiro Pereira (Migration) [2019] AATA 3224 (9 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jose Antonio Guerreiro Pereira

CASE NUMBER:  1721219

HOME AFFAIRS REFERENCE(S):          BCC2017/1474686

MEMBER:Mark Bishop

DATE:9 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 09 April 2019 at 2:18pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant – not enrolled in an approved course at the time of decision – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), ss 65, 359, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 500.111, 500.211, 500.212

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 21 August 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 23 April 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.

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 that the applicant intended genuinely to stay temporarily in Australia.

4. The applicant provided a copy of the decision record to the Tribunal. The decision record contained a copy of the applicant’s PRISMS record.

5. On 7 February 2109 the Tribunal formally wrote to the review applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal, including information in relation to enrolment.  The applicant responded by requesting an extension of time on 20 February 2019 to respond to the request for information. The Tribunal granted the extension of time until 21 March 2019.  The applicant did not provide a further response to the request for information. The Tribunal did not receive any further response to that written invitation. That is, the review applicant has not provided the Tribunal with any further information.

6. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under section 359(2) of the Act.  That invitation stated that it is a requirement of the student visa that the applicant is enrolled in a course of study and that the applicant is a genuine applicant for entry and stay as a student and requested information which goes towards both criteria. 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. 

7. 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).

8. The Tribunal finds that the review applicant did not provide further information as requested. 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. 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.

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

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

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. 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 provision of a Confirmation of Enrolment (COE).

    Enrolment (cl.500.211)

13. 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.

14. ‘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.

15. The applicant did not provide proof of enrolment or a current COE to the Department.

16. On 22 September 2017 the applicant wrote to the Tribunal and advised his education provider had cancelled his course (Tf: 35).The applicant advised the Tribunal that his enrolment in a Diploma of Early Childhood Education was cancelled by the education provider. The applicant’s PRISMS history as set out in the decision record disclosed all prior enrolments in courses of study were cancelled by the education provider or the time for completion of the course had finished.

17. The applicant did not provide proof of enrolment or a current COE to the Tribunal.

18. On 6 September 2018 the applicant wrote to the Tribunal and advised he was travelling to Portugal and he was unsure when he could return to Australia.

19. On 20 February 2019 the applicant wrote to the Tribunal and advised he sought an extension of a maximum of two months to resume his course and send information. The Tribunal responded as outlined in paragraph 5 above. There is no evidence before the Tribunal the applicant has returned to Australia.  The applicant has not provided any evidence to the Tribunal of current enrolment in a course of study. There is no evidence before the Tribunal the applicant is currently enrolled in a course of study.

20. 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.

21. 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

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

    Mark Bishop
    Member