Koh (Migration)

[2019] AATA 1449

Koh (Migration) [2019] AATA 1449 (24 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lay Hong Koh

CASE NUMBER:  1704240

HOME AFFAIRS REFERENCE(S):           BCC2017/417127

MEMBER:Damian Creedon

DATE:24 April 2019

PLACE OF DECISION:  Perth

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

Statement made on 24 April 2019 at 3:42pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not entitled to appear before the Tribunal – genuine temporary entrant – enrolment status – not enrolled in a course of study at time of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359C, 360, 363C
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 20 February 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. In the delegate’s record of decision, a copy of which was provided to the Tribunal by the applicant, the delegate noted that the applicant arrived in Australia on 3 November 2016 on a subclass 601 visitor visa valid to 3 February 2017. The applicant applied for the visa to which this application relates on 1 February 2017. 

3. At the time of the 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.

4. The delegate 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).  The Delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily.

5. On 9 January 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide further information in writing to the Tribunal.  The Tribunal did not receive any response to that written invitation.

6. 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 email address, being the email address provided by the review applicant in connection with this application for review

7. 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).

8. 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.

9. 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.

10. 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.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. While the issue before the delegate was whether the applicant is a genuine temporary entrant, arising from information contained in the applicant's Provider Registration and International Students Management System (PRISMS) record, the issue before the Tribunal became whether, at the time of decision, the applicant meets the enrolment requirement in cl.500.211(a) for a student visa.

14. 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.

15. ‘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.

16. The applicant’s PRISMS record indicates that she is not presently enrolled in a course of study.

17. On 8 April 2019, in accordance with section 359A of the Act, the Tribunal wrote to the applicant in the following terms:

    Dear Ms Koh

    INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MS LAY

    HONG KOH

    I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Student (Temporary) (Class TU) visa.

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·Recent checks of the Provider Registration and International Student Management System (PRISMS) indicate that you do not hold a current Confirmation of Enrolment.

    ·PRISMS also indicates that you have not commenced study in any of the three courses in which you have previously been enrolled.

    This information is relevant to the review because you have applied for a Student visa and the PRISMS records indicate that you have not commenced studying in the past and do not have an enrolment to study in the future.

    If we rely on this information in making our decision, we may form the view that you are not a genuine applicant for entry and stay as a student in Australia.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 23 April 2019. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

    If you cannot provide your written comments or response by 23 April 2019, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 23 April 2019 and you must state the reason why the extension of time is required.

18. The applicant failed to respond to the Tribunal’s letter dated 8 April 2019 by 23 April 2019 or at all. 

19. Regardless of the applicant’s intentions at the time of application, the criteria for the visa require her to be enrolled in a course at the time of decision. On the basis of the information contained in her PRISMS record, the Tribunal is not satisfied that at the time of this decision that the applicant is enrolled in a course of study.  Accordingly cl.500.211 is not met.

20. 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

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

    Damian Creedon
    Member