Jannat (Migration)

[2019] AATA 2067

Jannat (Migration) [2019] AATA 2067 (20 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Arifatun Jannat

CASE NUMBER:  1716245

HOME AFFAIRS REFERENCE(S):          BCC2016/4407048

MEMBER:P. Wood

DATE:20 February 2019

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 20 February 2019 at 4:31pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – no response to s 359(2) invitation – not entitled to appear before the Tribunal – enrolment status – no evidence of enrolment in a course of study at time of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.211

CASES
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 Immigration and Border Protection on 12 July 2017 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 30 December 2016. 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 review applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. On 13 August 2018 the Tribunal wrote to the review applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal, including information in relation to current enrolment. Despite being granted additional time to respond (the applicant emailed the Tribunal on the date the information was due – 27 August 2018), the applicant never responded to the Tribunal’s written request (dated 13 August 2018).

5. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the review applicant’s nominated address, being the address provided by the review applicant in connection with this application for review. In seeking additional time to respond, the applicant acknowledged receiving the Tribunal’s request.

6. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1).

7. The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

8. The Tribunal has proceeded to make a decision. At the outset however, it is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the 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.

   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.

10. The first primary criteria is contained in clause 500.211, which requires that at the time of decision the applicant is enrolled in a course of study:

    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.

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. The applicant does not claim to meet any of the alternative criteria in cl.500.211.

12. There is no recent evidence before the Tribunal for it to be satisfied that the applicant is currently enrolled in a course of study as required by cl.500.211. As such, the Tribunal cannot be satisfied that the criteria for the grant of a Subclass 500 (Student) visa are 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

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

    P. Wood
    Senior Member