Hsieh (Migration)

[2022] AATA 2935

Hsieh (Migration) [2022] AATA 2935 (16 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hong Chang Hsieh

CASE NUMBER:  2117338

HOME AFFAIRS REFERENCE(S):          BCC2021/1039494

MEMBER:Meredith Jackson

DATE:16 August 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 16 August 2022 at 4:11pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no current enrolment in registered course – no response to tribunal’s invitations to provide information and comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.111, 500.211(a), 500.212

CASE
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 10 November 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.The applicant Mr Hong Chang Hsieh, a national of Taiwan, applied for the visa on 6 May 2021. 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 (Cth) (the Regulations) because the delegate was not satisfied the applicant intends genuinely remain temporarily in Australia.

4.On 9 June 2022 the Tribunal wrote to the applicant, inviting him to provide information to satisfy the Tribunal that he meets the requirements of the Regulations, namely, of being enrolled in a registered course of study; and being a genuine applicant for entry and stay as a student. The applicant was also provided with a copy of Ministerial Direction No.69 “Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications”. Information in writing was requested by 23 June 2022 unless an extension of time was requested; whereupon the Tribunal would consider granting an extension. The letter advised that if the information was not received within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain it; and the applicant would lose any entitlement he may have had to appear before the Tribunal at a hearing. No response to the Tribunal’s invitation has been received.

5.On 12 July 2022 the Tribunal wrote to the review applicant pursuant to s 359A of the Act, inviting the review applicant to comment in writing on information that it considered would be the reason, or a part of the reason for affirming the decision under review. The letter advised the applicant that a recent check of the Provider Registration and International Student Management System (PRISMS) had indicated that the applicant does not hold a current Confirmation of Enrolment in a course of study. This information was relevant to the review because the applicant had applied for a Student visa and being enrolled in a registered course is a requirement for the grant of the visa (cl 500.211). The invitation stated that a course of study is defined as a fulltime registered course. If the Tribunal were to rely on this information in making a decision, the letter stated, the Tribunal may find that the applicant is not currently enrolled in a course of study, and this would mean that he did not meet cl 500.211 of the Regulations. The consequence of the Tribunal relying on this information is that it would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant the applicant a Student visa.

6.The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing 26 July 2022, the Tribunal may make a decision on the review without taking further steps to obtain comments, and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7.    The review applicant has not provided comments within the prescribed period and no extension has been granted. In these circumstances, s 359C 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 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 comments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Enrolment (cl 500.211)

1. 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 visa was refused because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia (cl 500.212), the issue before the Tribunal at the time of this decision is whether the applicant is enrolled in a registered course of study as required for the visa grant (cl 500.211).

2. 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.

3. ‘Course of study’ is relevantly defined in cl 500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in reg 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 (Cth), to provide the course to overseas students.

4. The Tribunal has considered the applicant’s record in the Provider Registration and International Student Management System (PRISMS). The record indicates that the applicant was last enrolled in a course of study on 29 May 2022, a General English (Beginner to Advanced) course, however the Confirmation of Enrolment has been cancelled. There is no information before the Tribunal that the applicant is enrolled as required at the time of this decision.

5. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant Hong Chang Hsieh is enrolled in a course of study and accordingly, cl 500.211 is not met.

6. 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

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

Meredith Jackson
Member