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

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).
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.
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).
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).
The applicant did not respond.
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].
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.
The applicant did not respond. The Tribunal refers to its previous remarks at para 6 (above).
The Tribunal has considered whether, in the circumstances of this case, information that the applicant meets the requirements of the Act…

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 Huang (Migration)

Details

AGLC: Huang (Migration) [2021] AATA 1725
Case: [2021] AATA 1725
Decision Date: 25 May 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Huang for a review of a decision not to grant a Subclass 500 (Student) visa. The applicant sought to remain in Australia as a student.

The Tribunal was required to determine whether the applicant met the criteria for a Subclass 500 visa, specifically whether they were enrolled in a course of study as required by clause 500.211(a) of the Regulations. The Tribunal also considered whether to exercise its discretion to adjourn the review to allow the applicant further time to provide information.

The Tribunal had before it information from the Provider Registration and International Student Management System which indicated that the applicant did not hold a current Confirmation of Enrolment. The applicant had also failed to respond to requests for further information or an invitation to comment. In light of this, the Tribunal decided not to grant a further adjournment and proceeded to make a decision based on the available information. The Tribunal found that the applicant was not presently enrolled in a course of study, and therefore did not satisfy the primary criteria for the visa.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. 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. 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. The Tribunal finds that the applicant is not presently enrolled in a course of study as required by cl.500.211(a). Accordingly, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the review applicant a Student (Temporary) (Class TU) visa.P. WoodSenior Member

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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