GURUNG (Migration)

[2020] AATA 2723

GURUNG (Migration) [2020] AATA 2723 (28 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms ALINA GURUNG

CASE NUMBER:  1819886

HOME AFFAIRS REFERENCE(S):          BCC2018/1244579

MEMBER:Elizabeth Tueno

DATE:28 May 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 28 May 2020 at 3:12pm

CATCHWORDS
MIGRATION - Student (Temporary) (Class TU) – Subclass 500 – not a genuine temporary entrant – no evidence of enrolment – no evidence of payment of course – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359(2), 359C(1), 360(3), 363A

Migration Regulations 1994, Schedule 2, cl.500.212, 500.111, 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 Home Affairs on 20 June 2018 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 15 March 2018. 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). The delegate was not satisfied that the information provided by the applicant demonstrated that they intended to stay temporarily in Australia.

4. On 25 November 2019, the Tribunal formally wrote to the review applicants pursuant to section 359(2) of the Act inviting the applicant to provide further information, including in relation to their enrolment, to the Tribunal.  The Tribunal did not receive any response to that written invitation. 

5. The Tribunal is satisfied that the review applicants were properly sent an invitation to provide further information under section 359(2) of the Act.  The invitation was sent to the review applicant by email, 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) of the Act.

7. 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).  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.

8. 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.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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. While the issue before the delegate was whether the applicant is a genuine temporary entrant, the issue before the Tribunal is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

12. 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.

13. ‘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.

14. The applicant has provided no documents to the Tribunal since lodging their application for review.  Accordingly, the Tribunal has made its decision based on the documents included in the department’s file.  The Tribunal notes that the delegate was concerned about the applicant’s enrolment in a course of study.  The only document provided to the department in relation to enrolment was a “offer of placement of enrolment” dated 15 March 2018 for proposed studies in a Bachelor of Business (Accounting) course at Polytechnic Institute Australia commencing on 26 March 2018 and ending on 21 March 2021. 

15. On 7 May 2018, the department requested evidence of a confirmation of enrolment in this course as well as other documents.  The applicant responded by providing numerous documents except for a confirmation of enrolment.  On 1 June 2018, the applicant requested an extension of time to provide this.  No confirmation of enrolment was ever provided to the department. 

16. The Tribunal notes that the offer of placement letter states that the total tuition fees for this course would be $42,000 and that the first instalment of this amount was $7,000.  The letter states that the total amount of fees due before a confirmation of enrolment would be issued was $7,200.  There is no evidence that the applicant ever paid this sum, or that they went onto commence the course.  Furthermore, there was a special condition that in order for the applicant to receive a full letter of offer, they were required to submit all onshore official academic transcripts and results.  There is also no evidence that the applicant complied with this request. 

17. The letter states that if the applicant wanted to accept the offer of placement, they were to sign the attached acceptance of offer.  Failure to submit the acceptance of offer and payment of the first instalment within 21 days from the date of the letter of offer would result in the placement offer being withdrawn. 

18. At the time of the department’s request for confirmation of enrolment, the course would have already commenced.  Had the applicant accepted the placement offer and paid the $7,200 by 5 April 2018 she would have been able to obtain a confirmation of enrolment.  The department’s request for evidence of this confirmation of enrolment was made a month later.  The applicant’s request for further time to provide this meant that they had had two months from the acceptance date to organise a confirmation of enrolment.  As already noted, the applicant has not provided any evidence of payment of the first instalment fee, acceptance of offer of placement or confirmation of enrolment. 

19. 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.

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.

    Elizabeth Tueno
    Member