Kim (Migration)

[2018] AATA 2460

Kim (Migration) [2018] AATA 2460 (28 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jaewon Kim
Ms Seunghee Jo
Mr Jimin Kim

CASE NUMBER:  1704401

HOME AFFAIRS REFERENCE:                BCC2016/4054378

MEMBER:Rosa Gagliardi

DATE:28 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 28 May 2018 at 3:36pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant is a genuine applicant for entry and stay as a student – Applicant did not respond to request for information – No evidence of claims provided to the Tribunal – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 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 24 February 2017 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 1 December 2016. 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 first named visa applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the first named visa applicant’s lack of academic progress, his study history and potential circumstances in Australia, pointed to him not being a genuine applicant for entry and stay as a student.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 cl.500.212.

6. 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.

7. On 13 April 2018 the Tribunal wrote to the applicants at an authorised email address for the purposes of the review, under s.359(2) of the Migration Act, requesting information regarding the first-named visa applicant’s proposed course(s) and details of study and entry and stay in Australia as a student. It was requested that the information be provided to the Tribunal by 27 April 2018. The applicants have not responded to that request and nor have they sought an extension of time to be able to provide the requested information.

8. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 27 April 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The applicants have 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 applicants are 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 decision without taking further steps to obtain the information.

10. In these circumstances the only outcome the Tribunal can reach is that the Tribunal is not satisfied that the first named visa applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

11. Given the above findings the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicants do not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Rosa Gagliardi
    Member