Hitihamy Mudiyanselage (Migration)

[2019] AATA 1322

Hitihamy Mudiyanselage (Migration) [2019] AATA 1322 (17 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chathupama Sandasiri Subasinghe Hitihamy Mudiyanselage

CASE NUMBER:  1723311

HOME AFFAIRS REFERENCE(S):           BCC2016/4408804

MEMBER:Elizabeth Tueno

DATE:17 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 17 April 2019 at 9:32am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – did not commence proposed course of study – no evidence of enrolment at time of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 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 7 September 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 December 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 they were not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. On 19 February 2019, 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.  The Tribunal did not receive any response to that written invitation. 

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

6. 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) of the Act.  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.

7. 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 necessary to enable the examiner to establish the relevant facts.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue before the delegate was whether the applicant met the criterion in clause 500.212. However, the issue now is whether at the time of this decision, the applicant meets the enrolment requirements for a student visa.

11. With limited exceptions, cl.570.232, 571,232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under er.1.40A for the subclass at the time of application.  This requirement does not apply to certain ‘eligible higher degree students’, ‘eligible university exchange students’, and ‘eligible non-award students’.  There is no evidence before the Tribunal that the applicant is a eligible higher degree student as defined in cl.573.111 and 574.111 respectively, or an eligible university exchange student or eligible non-award student for the purposes of Subclass 575 as defined in cl.575.111.

12. At the time of the delegate’s decision on 7 September 2017, the applicant was enrolled to undertake an Advanced Diploma of Leadership and Management which was due to commence 9 January 2017.  The Department records indicate that the applicant did not in fact commence this course on this date. 

13. The applicant had previously been enrolled in a Bachelor of Commerce but discontinued this course on 10 July 2016.  The applicant was also previously enrolled in a Certificate IV in EAL and a Diploma of Leadership and Management.  There was no information on the Department’s file to indicate whether the applicant did or did not complete these courses. Since there is no evidence to show the applicant ever commenced the Advanced Diploma of Leadership and Management which was due to start on 9 January 2017, based on the information provided by the applicant to the Department, it appears that the applicant ceased his studies on 10 July 2016 when he discontinued the Bachelor of Commerce course.

14. There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study.  Therefore, cl.570.232, 571,232, 572.231, 573.231, 574.231 and 575.231 are not met.

15. Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU.  The applicant is neither supported by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student Guardian.

16. For these reasons, the decision under review must be affirmed.

    DECISION

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

    E. Tueno
    Member