Kim (Migration)

[2020] AATA 2987

Kim (Migration) [2020] AATA 2987 (12 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jiyeon Kim

CASE NUMBER:  1903240

HOME AFFAIRS REFERENCE(S):          BCC2018/5111710

MEMBER:Peter Haag

DATE:12 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 12 May 2020 at 12:50pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine entrant as student – current enrolment – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212; r 1.03

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 Home Affairs on 29 January 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 16 November 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 (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. The applicant was assisted in relation to the review.

5. On 17 April 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information in writing about the Student visa and, in particular, sufficient information to satisfy the Tribunal: that the applicant is enrolled in a registered course of study; and, that the applicant is a genuine applicant for entry and stay as a student. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by the end of the prescribed period, being 1 May 2020, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant did not provide the information within the prescribed period and no extension of time was requested. In these circumstances, s.359C of the Act applies and pursuant to s.360(3) of the Act 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information because the decision by the applicant not to provide the information indicates the applicant is content for the Tribunal to decide the review on the information the applicant provided to the Department and the Tribunal prior to receiving the s.359(2) invitation.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 is currently enrolled in a course of study.

   Enrolment (cl.500.211)

9. 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.

10. ‘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.

11. For the purpose of determining whether the applicant is currently enrolled in a course of study the Tribunal has considered the contents of the Department file and the Tribunal file. There is no evidence in either file, such as a Confirmation of Enrolment document or other documentation that establishes the applicant is currently enrolled in a course of study. Therefore, on the evidence before the Tribunal, 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.

12. 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

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

    Peter Haag
    Member