Ho (Migration)

[2018] AATA 3264

Ho (Migration) [2018] AATA 3264 (15 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Shu-Fen Ho

CASE NUMBER:  1616982

HOME AFFAIRS REFERENCE(S):           BCC2016/2743194

MEMBER:Mark Bishop

DATE:15 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 15 August 2018 at 5:03pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine student –No certificate of enrolment – Expired Overseas Heath Insurance coverage – Practice and procedure – No entitlement to a hearing – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2 cl

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 27 September 2016 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 18 August 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 Tribunal made numerous requests of the applicant that she provide a copy of the decision record to the Tribunal. The applicant did not respond to those requests for a copy of the decision record. The MA for the Applicant did not provide a copy of the decision record to the Tribunal. The Tribunal did not have a copy of the decision record.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

   Genuine applicant for entry and stay as a student (cl.500.212)

6. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

7. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

   ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

8. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

9. The Tribunal wrote to the applicant on 13 April 2018 requesting information under s.359(2) of the Act in the following terms:

   ·As you applied for this visa on the basis of undertaking a course of study in Australia, it is a requirement for the visa that you are enrolled in a registered course of study and that you are a genuine applicant for entry and stay as a student.

   ·Accordingly, you are now invited to give, in writing, information about your proposed course(s) of study and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information questionnaire attached with this letter. The information requested should be given by completing the attached questionnaire and returning it to us.

10. The Tribunal advised the information should be provided by 27 April 2018 or the applicant had the right to seek an extension of time. The applicant did not respond within time and did not request an extension of time.

11. The applicant did not respond to this request for information. The applicant did not provide any information to the Tribunal.

12. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are 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 decision without taking further steps to obtain the information

13. On four separate occasions the Tribunal attempted to contact the applicant or her MA to obtain a copy of the decision record. The applicant and her MA did not respond to those requests or provide a copy of the decision record to the Tribunal.

14. The applicant did not provide any evidence to the Tribunal of her visa record.

15. The applicant did not provide a GTE statement to the Department.

16. The applicant did not provide a GTE statement to the Tribunal.

17. The Tribunal requested the applicant to advise whether she had a current Confirmation of Enrolment (COE) in an approved course. The applicant did not respond to this request for information. The applicant did not provide a copy of a Confirmation of Enrolment (COE) in an approved course. The applicant did not provide any evidence to the Tribunal of enrolment in an approved course.

18. Clause 500.211 is a primary criteria. Clause 500.211(a) of Schedule 2 to the Migration Regulations requires that an “…applicant is enrolled in a course of study”. There is no information before the Tribunal the applicant is enrolled in an approved course or holds a COE.

19. 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 the applicant. The issue in the present case is whether the applicant is enrolled in a course of study as required for the grant of a student visa.

20. 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.

21. '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.

22. There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment, in any course of study. Therefore the Tribunal is not satisfied that at the time of this decision, that the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

23. The applicant provided proof of Overseas Student Health Coverage (OSHC). This OSHC coverage expired on 25 September 2015. The applicant did not provide proof of current OSHC coverage. Clause 500.215 is a primary criteria. Clause 500.215 of Schedule 2 to the Migration Regulations provides “The applicant gives to the Minister evidence of adequate health arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia”. There is no evidence before the Tribunal the applicant holds OSHC.

24. There is no evidence before the Tribunal that the applicant has current OSHC. Therefore the Tribunal is not satisfied that at the time of this decision, that the applicant has OSHC and accordingly cl.500.215 is not met.

25. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

    Conclusion on cl.500.212

26. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

27. 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

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

    Mark Bishop
    Member