HOANG (Migration) - [2021] AATA 2957

HOANG (Migration) [2021] AATA 2957 (2 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Nguyen Kim Hong HOANG
CASE NUMBER:  1927356
HOME AFFAIRS REFERENCE(S):          BCC2019/2707122
MEMBER:Mark Bishop
DATE:2 July 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 02 July 2021 at 9:44am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment status – no response to s 359(2) invitation – not entitled to appear before the Tribunal – Tribunal declined indefinite adjournment of decision – proof of enrolment not provided – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.211
CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Yang v MIAC [2010] FMCA 890
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 September 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 24 May 2019. 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.
In this case the Tribunal formally wrote to the review applicant pursuant to s.359(2) of the Act inviting the review applicant to provide further information to the Tribunal, including information in relation to enrolment: cl.500.211(a).
The Tribunal did not receive any response to the before mentioned written invitation.
The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under s.359(2) of the Act. The invitation was sent to the review applicant’s nominated address, being an address provided by the review applicant in connection with this application for review.
As the applicant failed to respond within the prescribed period, s.359C(1) applies and pursuant to s.360(3), 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 them to appear see Hasran v MIAC [2010] FCAFC 40 at [26]; Yang v MIAC [2-010] FMCA 890 at [40].
The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading HOANG (Migration)

Details

AGLC: HOANG (Migration) [2021] AATA 2957
Case: [2021] AATA 2957
Decision Date: 2 July 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Subclass 500 (Student) visa. The dispute centred on whether the applicant met the criteria for this visa, specifically concerning their enrolment status in a registered course of study. The Tribunal was tasked with reviewing the delegate's decision to refuse the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the enrolment criterion as stipulated in clause 500.211 of the Migration Regulations 1994. This clause requires an applicant to be enrolled in a full-time registered course of study at the time of the decision. The Tribunal also had to consider the significance of this enrolment criterion in the context of the overall assessment for a student visa, and whether the applicant had provided sufficient evidence of their current enrolment.

The Tribunal reasoned that evidence of current enrolment in a registered course of study is a fundamental and critical first step for any student visa application. Such enrolment demonstrates a legally binding commitment between the applicant and a registered course provider, signifying a tangible and immediate need for the visa. Furthermore, maintaining enrolment is a continuing condition of a student visa. In this instance, the material before the Tribunal indicated that the applicant was not currently enrolled in a registered course of study. As the enrolment criterion in clause 500.211 was not met, the Tribunal concluded that there was no administrative utility in considering any further primary criteria for the visa.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a Subclass 500 (Student) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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 determinative issue before the delegate was whether the applicant met the genuine temporary entrant criteria under clause 500.212 of the Regulations, the material and evidence before the Tribunal indicate that he is not currently enrolled in a registered course of study.Enrolment (cl.500.211) 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. ‘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.Significance of Enrolment Criterion Producing evidence of current enrolment is a critical first step towards obtaining a student visa. Such evidence shows that the applicant has, prior to the Tribunal making its decision, entered into a legally binding contract with a registered course provider. That contract gives rise to several significant obligations. First, it obliges the course provider to provide the applicant with a pre-determined course of education or training over a specified period. Second, it obliges the applicant to pay for the course. Third, it obliges the applicant to complete the course requirements to receive a testament from the course provider as to what the applicant has achieved by way of formal qualification. An enrolment therefore represents a present and operating commitment by the applicant to complete a course of study. It is persuasive evidence of a tangible and immediate need for a student visa. An enrolment continues to be of legal significance once a student visa is issued. All student visas are subject to a condition that the visa holder remains enrolled in a registered course of study. That condition operates on a continuing basis every day the visa remains valid. If a student visa is issued to an applicant who is not enrolled in a course of study, the visa will be breached as soon as it is granted. The Tribunal must therefore be presented with evidence that shows the applicant is currently enrolled in a registered course of study. Absent such evidence, a student visa cannot sensibly be grated. Indeed, in any case for a student visa, consideration of whether all other primary criteria are met, as contained in clauses 500.211-500.218 of the Regulations, is premised on the enrolment criterion in clause 500.211 first being satisfied. If clause 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.

Decision

Reasons for decision

Accordingly, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.Mark BishopMember

Ratio Decidendi

Legal Principle Established

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