Kim (Migration)

[2020] AATA 3629

Kim (Migration) [2020] AATA 3629 (15 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Kyung Ja Kim
Mr Choong Geuk Hwang

CASE NUMBER:  1825882

HOME AFFAIRS REFERENCE(S):          BCC2018/2701047

MEMBER:Frank Russo

DATE:15 July 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 15 July 2020 at 12:35pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–   genuine temporary entrant criterion not met–not currently enrolled in a registered course of study – never commenced  study– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212

Education Services for Overseas Students Act 2000

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 23 August 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 19 July 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant is a 58-year-old national of the Republic of Korea (South Korea). The second-named applicant is the applicant’s husband, a 61-year-old South Korean national. The Student visa application was made in respect of an enrolment in a Diploma of Ministry with Hope College.

5. The applicants were assisted in relation to the review by their registered migration agent.

6. On 18 March 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting her to provide information in writing about the course(s) of study she is undertaking and her entry and stay in Australia as a student. The applicant provided a s.359(2) response on 1 April 2020. In this response the applicant indicated that she did not consent to the Tribunal deciding the review without a hearing.

7. Accordingly, the applicants were invited under s.360 of the Migration Act 1958 to appear before the Tribunal at a telephone hearing on 14 July 2020. The invitation stated that if they did not attend the hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable them to appear before the Tribunal or may dismiss the application for review without any further consideration of the application or the information before it.

8. On 13 July 2020 the Tribunal received email correspondence from the applicant’s registered migration agent, advising that the applicant ‘… does not want to participate in the hearing due to personal reasons.’

9. The Tribunal is satisfied that the applicant has given consent to the Tribunal deciding the review without the applicant appearing before it (s.360(2)(b)), and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

10. 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 decision maker to establish the relevant facts.

11. In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

14. While the issue before the delegate was whether the applicant is a genuine temporary entrant, from the documents before the Tribunal, there is no evidence that the applicant, at the time of this decision, meets the enrolment requirement in cl.500.211(a) for the Student visa.

15. In her s.359(2) response, the applicant stated that she first arrived in Australia on 12 March 2006 holding an Electronic Travel Authority. Following this she held three Temporary Work (skilled) visas (subclass 457), until July 2016. Following this she held a Bridging visa until January 2018, followed by another Electronic Travel Authority granted in July 2018.

16. According to the delegate’s decision the applicant first arrived in Australia on 1 July 2015, and has held three Visitor visas and three 457 visas, and as at the date of the delegate’s decision had held temporary visas for approximately 13 years.

17. The visa application currently under review was made in respect of an enrolment which would require her to remain onshore until at least 25 November 2020, which would bring the applicant’s total time in Australia on temporary visas and associated Bridging visas to over 15 years.

    Enrolment (cl.500.211)

18. 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.

19. ‘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.

20. As noted above, the applicant was invited pursuant to s.359(2) to provide information about the course(s) of study she is undertaking and her entry and stay in Australia as a student. The applicant provided a response on 1 April 2020, in which she indicated that she had enrolled in ‘Christian Ministry and Theology’ at Hope College. Regarding the status of this enrolment, the applicant stated ‘Never started’. The applicant did not provide details of any further enrolments.

21. The applicant has not provided the Tribunal with a copy of a CoE or any other documents which indicate that she is currently enrolled in a course of study.

22. The Tribunal notes that it has on file a copy of the applicant’s enrolment record from the Provider Registration International Student Management System (PRISMS) database, but does not rely on the information contained in this record as it is consistent with the evidence the applicant has provided in her s.359(2) response about the status of her enrolment, namely that she never commenced the Diploma of Ministry.

23. On the evidence before the Tribunal, there is no evidence that the applicant is now enrolled in or has a current offer of enrolment in any applicable course of study. Rather, the evidence provided by the applicant indicates that she did not commence the Diploma of Ministry and that her CoE for this course has been cancelled.

24. As the applicant was given the opportunity to provide enrolment evidence to the Tribunal, such as a copy of a current CoE, but no such evidence has been provided, there is no evidence before the Tribunal that the applicant is enrolled in any approved course of study.

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

26. 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

27. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Frank Russo
    Member