KURNIAWAN (Migration)

[2018] AATA 1171

KURNIAWAN (Migration) [2018] AATA 1171 (15 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr DENY KURNIAWAN

CASE NUMBER:  1701891

DIBP REFERENCE(S):  BCC2016/3824245

MEMBER:Jennifer Cripps Watts

DATE:15 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 March 2018 at 1:53pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant is enrolled in a registered course of study – No evidence of enrolment provided

LEGISLATION
Education Services for Overseas Students Act 2000, Pt 2 Div 3
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, 500.211, 5002.212

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 on 20 January 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 15 November 2016. 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 the applicant is a genuine applicant for entry and stay as a student.

4. The visa that is the subject of this review was refused on 20 January 2017.  The applicant applied for review by this Tribunal on 3 March 2017, within time, and provided the Tribunal with a copy of the Department’s decision to refuse his student visa.  The applicant’s matter was constituted to this member and, on 21 February 2018, the Tribunal sent the applicant a written invitation to attend his hearing scheduled on 15 March 2018.   

5. The invitation to the hearing also included information relating to what types of evidence and statements the applicant should consider providing to the Tribunal before his hearing, specifically addressing the issue of whether he “...is a genuine applicant for entry and stay as a student by referring to Direction No.69.”  The Tribunal attached a copy of an extract from the Migration Act 1958, Direction Number 69 – Assessing the Genuine Temporary Entrant criterion for Student Visa and Student Guardian Visa Applications to the invitation, for his ease of reference. 

6. The applicant was informed in the cover letter to the hearing invitation that he should refer to the delegate’s written decision which would give the reasons why he did not meet the criteria for the grant of the student visa.  The applicant was informed he should provide a copy of his current Confirmation of Enrolment (COE) and some other documents relating to his student visa application.  The applicant did not respond to the hearing invitation.  The applicant did not provide the Tribunal with additional documentary information in support of his application prior to the hearing.  SMS hearing reminders were sent to the applicant on 8 and 14 March 2018.  No error or undelivered message was received back by the Tribunal.

7. At the time of this decision, the applicant has not provided the Tribunal with a current COE indicating he is enrolled in a course of study.  The applicant did not attend his hearing on 15 March 2018 and did not communicate with the Tribunal or offer any reason why he did not attend his hearing.  The applicant did not request a hearing postponement.  In the circumstances, the Tribunal finds that the applicant has waived his right to a hearing and has proceeded to make a decision on the available evidence.

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. The issue in the present case is whether the applicant meets the criteria for the grant of a subclass 500 student visa. The delegate refused the visa because the applicant did not meet cl.500.212, that is, the delegate was not satisfied the applicant was a genuine applicant for entry and stay as a student. All criteria must be satisfied at the time a decision is made on the application. In reviewing the matter, the Tribunal has first turned its mind to whether the applicant is enrolled in a course of study at the time of decision: cl.500.211.

   Enrolment (cl.500.211)

10. 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.

11. ‘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.

12. The applicant was properly invited to his hearing by the Tribunal and was sent two SMS hearing reminders.  In the written invitation to the hearing, the applicant was informed he should provide documentary information in support of his application, including a current COE, as evidence that he is enrolled in a course of study.

13. The applicant has not provided a COE and did not attend his scheduled hearing to provide evidence and present arguments.  In the circumstances, the Tribunal is not satisfied the applicant is currently enrolled in a course of study and, accordingly, cl.500.211 is not met.

14. 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

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

    Jennifer Cripps Watts
    Member