KIM (Migration)

[2018] AATA 4771

KIM (Migration) [2018] AATA 4771 (16 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss TAEEUN KIM

CASE NUMBER:  1711378

HOME AFFAIRS REFERENCE(S):           BCC2017/751838

MEMBER:Mark Bishop

DATE:16 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 16 October 2018 at 3:24pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – poor academic history – enrolment in multiple courses – no enrolment in a registered course of study – decision under review affirmed

PRACTICE AND PROCEDURE – no entitlement to a hearing

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359C, 360, 363A, 499
Migration Regulations 1994 (Cth), Schedule 2 cls 500.211, 500.212

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 10 May 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 24 February 2017. 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 intended genuinely to stay temporarily in Australia.

4. The applicant provided a copy of the decision record to the Tribunal. The decision record outlined the applicant’s immigration, visa and study history in Australia. The decision record disclosed the applicant first came to Australia in November 2008 and has held either student or bridging visas since that time.

5. The decision record contained a copy of the applicant’s PRISMS record that showed the applicant had enrolled in courses in Leadership and Management at Diploma and Advanced Diploma level on multiple occasions, Business at Certificate, Diploma and Degree level on multiple occasions, English on multiple occasions at different levels, Management at Diploma and Advanced Diploma level on multiple occasions, Hospitality, Hospitality Management, Food Processing and Retail Baking, Hospitality and Patisserie and Marketing and Communication. The delegate made a finding the PRISMS record showed the applicant had finished courses in Certificate 1 in English (EAL) and General English, Diploma of Management, Certificate III in Business, Certificate III in Food Processing.

6. The Tribunal notes the applicant has not provided proof of Graduation or a Certificate of Completion or Graduation in any of the courses outlined in paragraph 5 above.

7. The applicant did not challenge the findings of the delegate.

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.

   Genuine applicant for entry and stay as a student (cl.500.212)

10. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

11. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

12. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

13. The Tribunal wrote to the applicant on 7 August 2018 requesting information under s.359(2) of the Act in the following terms:

    ·As you applied for this visa on the basis of undertaking a course of study in Australia, it is a requirement for the visa that you are enrolled in a registered course of study and that you are a genuine applicant for entry and stay as a student.

    ·Accordingly, you are now invited to give, in writing, information about your proposed course(s) of study 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 questionnaire attached with this letter. The information requested should be given by completing the attached questionnaire and returning it to us.

14. The Tribunal advised the information should be provided by 21 August 2018 or the applicant had the right to seek an extension of time. The applicant did not respond within time and did not request an extension of time.

15. The applicant did not respond to this request for information. The applicant did not provide any information to the Tribunal.

16. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review 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 decision without taking further steps to obtain the information.

17. The applicant did not provide a GTE Statement to the Department.

18. The applicant did not provide a GTE Statement to the Tribunal.

19. The applicant did not provide a copy of a Confirmation of Enrolment (COE) to the Tribunal. The applicant did not provide proof of enrolment in a course of study as required by cl.500.211 of Schedule 2 to the Migration Regulations.

20. 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 the applicant.

21. 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.

22. '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.

23. The applicant did not respond to a request for information from the Tribunal as to whether she had a current COE in a course of study in writing he was not currently enrolled in a course of study.

24. There is no evidence before the Tribunal the applicant is currently enrolled in a course of study as required by cl.500.211 of Schedule 2 to the Migration Regulations.

25. Accordingly, the Tribunal is not satisfied that the applicant is enrolled in a course of study as required by cl.500.211

26. The Tribunal turns to consider Ministerial Direction Number 69.

27. The Tribunal considers the applicant’s circumstances in her home country, the applicant’s potential circumstances in Australia, the value of the course to the applicant’s future and the applicant’s immigration history

28. The Tribunal finds the applicant provided minimal information concerning her home country excluding detail of family; declined to provide information about assets held in her home country; came to Australia in 2008; has been resident in Australia since 2008; enrolled in numerous courses in the  VET and HE sectors from 2008 until the present time; has finished (this means the time for completion of the course has expired) but did not provide proof of completion or graduation in any courses to either the Department or the Tribunal; has not provided current proof of enrolment in a course of study or a current COE in a course of study; has not provided any detail as to any communication with family in her home country;  failed to provide any detail as to the value of any course of study; did not provide any information about a possible business enterprise in her home country; did not provide information about any military service commitments in her home country; did not provide detail of any political or civil unrest in her home country; did not provide information about courses undertaken prior to coming to Australia; did not provide information about work experience prior to coming to Australia; did not provide information about work experience, if any, since coming to Australia in 2008; did not provide information about her immigration history; did not provide information about living expenses in Australia; did not provide information about her family and close personal friendships and did not provide information concerning property or other significant assets or employment plans.

29. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

    Conclusion on cl.500.212

30. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

31. 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

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

    Mark Bishop
    Member