Huang (Migration)

[2021] AATA 1725

Huang (Migration) [2021] AATA 1725 (25 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Junlan Huang

CASE NUMBER:  1919524

HOME AFFAIRS REFERENCE(S):          BCC2019/2591115

MEMBER:P. Wood

DATE:25 May 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 25 May 2021 at 5:03pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) – genuine temporary entrant – no current enrolment – no response to requests for further information or invitation to comment – application under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359A, 359C(1), 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211(a), 500.212(a),

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Yang v MIAC [2010] FMCA 890

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 July 2019 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 17 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.

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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. On 21 January 2021 the Tribunal formally wrote to the applicant pursuant to s.359(2) of the Act inviting the applicant to provide further information to the Tribunal, including information in relation to enrolment: cl.500.211(a).

5. The applicant did not respond.

6. As the applicant failed to respond within the prescribed period, s.359C(1) applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear.[1]

   [1] see Hasran v MIAC [2010] FCAFC 40 at [26]; Yang v MIAC [2010] FMCA 890 at [40].

7. On 30 April 2021 the Tribunal formally wrote to the applicant pursuant to s.359A of the Act inviting the applicant to comment on or respond to information obtained from the Provider Registration and International Student Management System on 20 April 2021 indicating that the applicant does not hold a current Confirmation of Enrolment in a course of study.

8. The applicant did not respond. The Tribunal refers to its previous remarks at para 6 (above).

9. The Tribunal has considered whether, in the circumstances of this case, information that the applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide relevant information already.

10. The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

    [2] [2002] FCA 617

    [3] [2012] FMCA 28

11. A decision maker is not required to make an applicant’s case. It is for an 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.

12. In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the applicant has had a fair opportunity to provide relevant information and to comment on or respond to the information regarding their non-enrolment.

13. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the applicant to the Department.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

15. Clause 500.211 provides:

    500.211  One of the following applies:

    (a)       the applicant is enrolled in a course of study;

    (b)       if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

    (c)       if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;

    (d)       if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.

16. The Tribunal has carefully considered the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant. Additionally, the Tribunal has carefully considered information from the Provider Registration and International Student Management System indicating that the applicant does not hold a current Confirmation of Enrolment in a course of study.

17. The Tribunal finds that the applicant is not presently enrolled in a course of study as required by cl.500.211(a).

18. Accordingly, the decision under review must be affirmed.

    DECISION

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

    P. Wood
    Senior Member