Huang (Migration)

[2020] AATA 3606

Huang (Migration) [2020] AATA 3606 (2 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mengxin Huang

CASE NUMBER:  1830694

HOME AFFAIRS REFERENCE(S):          BCC2018/3639914

MEMBER:Peter Newton

DATE:2 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 2 September 2020 at 12:17 pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study history – no appearance at hearing – no evidence of current enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A(5)
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.211(a), 500.212

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 2 October 2018 (Department’s Decision) to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (Act).

2. The applicant applied for the visa on 25 September 2018. 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 (Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. On 16 July 2020 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments by phone at a hearing on 28 August 2020 at 10:00am (NSW time).  The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The invitation requested the review application to read and complete the enclosed ‘Response to hearing invitation’ form and return it to the AAT within 7 days of receipt of the invitation letter.  The Tribunal also sent them SMS reminders to the review applicant about the hearing 5 business days and one business day before the scheduled hearing.

5. The review applicant provided to the Tribunal the completed Response to hearing invitation form dated 21 July 2020 indicating that: - she would take part in the hearing scheduled for 28 August 2020; she needed an interpreter in the Mandarin language; and she did not intend to rely on any documents at the hearing or evidence from any witnesses.  However, the review applicant did not appear before the Tribunal by phone on the day and at the scheduled time.

6. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5) of the Act.  The invitation has not been returned to sender. Two separate SMS reminders were also sent to the review applicant about the hearing.  The Tribunal attempted to contact the review applicant by phone at 9:50 am, 10:00 am and 10:30 am.  On each attempt there was no answer.

7. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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. The issue in the present case is whether the applicant has a current Certificate of Enrolment (COE) or other document that shows the applicant tis currently enrolled in a course of study as defined in cl 50.111 and as required by cl 500.211(a) of Schedule 2 to the Regulations for the grant of the visa.

   Enrolment (cl.500.211)

10. 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.

11. ‘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.

12. On 30 March 2020 the Tribunal sent to the applicant and Invitation to Provide Information.  The Invitation to Provide Information states:

    “I am writing in relation to the application for review made by you in respect of a
    decision to refuse to grant a Student (Temporary) (Class TU) visa.

    As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:

    ·enrolled in a registered course of study; and

    ·a genuine applicant for entry and stay as a student.

    Accordingly, you will need to provide sufficient information to satisfy us that you meet
    both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking 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 form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking ‘Submit’ on the Declaration page.

Click here to complete the online Request for Student Visa Information form.

Alternatively, you may print, complete and return a hard copy of the form to us should
you prefer. Click here to open a printable copy of the Request for Student Visa
Information form. Please do not return a hard copy of the form to us if you have already submitted it online.”

1. The Tribunal is satisfied the review applicant received the Invitation to Provide Information because it was sent to the email address provided by the review applicant to the Tribunal and the applicant completed the online Request for Student Visa Information form referred to in the Invitation to Provide Information.

2. In the completed Request for Student Visa Information the applicant provided to the Tribunal the applicant indicated that she has a current Confirmation of Enrolment in a registered course of study.  The applicant disclosed that in October 2018 she enrolled in a Diploma of Project Management course at Australian Vocational Training Institute which had a course start date of October 2018.  The applicant provided the COE for that course which records a course state date of 15 October 2018 and a course end date of 11 October 2019.  The review applicant provided to the Tribunal a letter from the Australian Vocational Training Institute dated 19 October 2018.  The letter confirms the applicant is enrolled in and (then) studying the Diploma of Project Management course.  The letter sates the course has a start date of 15 October 2018 and an expected finish date of 11 October 2019. 

3. The COE the applicant provided to the Tribunal for the Diploma of Project Management course at Australian Vocational Training Institute is not current.  There is no evidence before the Tribunal that the applicant has a current COE for a course of study or she is currently enrolled in a course of study.

4. The Invitation to Attend a Hearing sent to the review applicant on 16 July 2020 states:

   “What you should do on receipt of this letter

   Please read and complete the enclosed ‘Response to hearing invitation’ form and
   return it to the AAT within 7 days of receipt of this letter.

   Please provide at least 7 days before the hearing all documents you intend to rely on
   to establish that you meet the criteria for the visa. The decision made by the
   department to refuse to grant a visa should set out the reasons why you did not meet
   the criteria, and you should have regard to these, and any changes in your
   circumstances, in providing documents and preparing for the hearing. Any documents
   or written arguments sent to us should be in English and if not then accompanied by a
   translation from a NAATI accredited translator.

   In addition, please provide the following information at least 7 days before the
   hearing date so that a decision can be made as quickly as possible:

   1.     A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.

   2.      Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia. Please note, if you have recently provided these documents to the Tribunal, there is no need to submit them again, but please ensure that you have provided us with the most up-to-date information.

   We may assess whether you are a genuine applicant for entry and stay as a student
   (which was the reason for the delegate’s decision). Relevant to this requirement is a
   direction from the Minister known as Direction No. 69, a copy of which is attached.

   We may also assess whether you are enrolled in a registered course of study. Please
   note that not being enrolled in a registered course of study may be a reason, or a part
   of the reason, for the Tribunal affirming the decision under review, even if this is not
   the same criteria or issue considered by the delegate.”

5. The Tribunal is satisfied the review applicant received the Invitation to Attend a Hearing because it was sent to the email address provided by the review applicant and the applicant completed and provided to the Tribunal the Response to hearing invitation form which is signed in the name of the review applicant and dated 21 July 2020.

6. The Tribunal is satisfied the applicant was on notice that enrolment was also a determinative issue on review and it is open to the Tribunal to affirm the Department’s Decision on the failure of the applicant to be enrolled in a course of study.

7. Having regard to the evidence referred to above and as there is no evidence the applicant is  currently enrolled in a course of study  the Tribunal is satisfied that at the time of this decision, the applicant is not enrolled in a course of study and accordingly cl.500.211 is not met.

8. 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

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

   Peter Newton
   Member