Li (Migration) - [2020] AATA 2400

Li (Migration) [2020] AATA 2400 (12 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Zonglun Li
CASE NUMBER:  1825622
HOME AFFAIRS REFERENCE(S):          BCC2018/1987660
MEMBER:Michael Biviano
DATE:12 June 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 June 2020 at 4:52pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no response to tribunal’s s 359(2) letter – visa and study history – no evidence of current enrolment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2) 359A, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.211, 500.212(a)
CASE
Hasran v MIAC [2010] FCAFC 40
Singh v MIAC (2009) 236 FLR 384
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 August 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 8 May 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.
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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the reason that he was not a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily.
On 24 February 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act (24 February Letter), inviting the applicant to provide information in writing about whether he was enrolled in a registered course of study and a genuine applicant for entry and stay as a student. The invitation was sent to the last address provided in connection with the review, being his email address and advised that, if the information was not provided in writing by the prescribed period, being 10 March 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 he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The review 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 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Li (Migration) [2020] AATA 2400
Case: [2020] AATA 2400
Decision Date: 12 June 2020

CaseChat Overview and Summary

This matter concerned an application for a Student (Temporary) (Class TU) visa, Subclass 500, made by a Chinese national. The applicant had previously held student visas to study in Australia, obtaining a Victorian Certificate of Education in 2015 and a Diploma of Leadership and Management in 2017. At the time of the current visa application, the applicant claimed to be enrolled in a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery, and a Diploma of Hospitality Management, all due to conclude in March 2020. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the visa, specifically whether they were a genuine applicant for entry and stay as a student and whether they were enrolled in a registered course of study.

The Tribunal considered the definition of a "course of study" as a "full-time registered course" and a "registered course" as one provided by an institution registered to provide such courses to overseas students. The applicant had been invited by the Tribunal to provide information regarding their course of study and their genuine intention to study in Australia. However, the applicant failed to respond to this invitation. The Tribunal noted that the applicant's previous Diploma of Leadership and Management was not successfully completed, and while the applicant claimed to be enrolled in hospitality courses, no evidence of current enrolment or satisfactory progress was provided.

Given the lack of response to the Tribunal's request for information and the absence of evidence demonstrating current enrolment in a registered course of study, the Tribunal concluded that the applicant had not satisfied the criteria for the Subclass 500 visa. Consequently, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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 was whether the applicant was a genuine applicant for entry and stay as a student, however, the issue became whether the applicant was enrolled in a registered course of study.Enrolment (cl.500.211) 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, which relates to postgraduate thesis marking, Foreign Affairs students or Defence students (see cl.500.211(b) to (d) respectively). ‘Course of study’ is relevantly defined in cl.500.111 of Schedule 2 to 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. The applicant is a 23-year-old Chinese national who came to Australia on 4 April 2013. The decision record of the delegate of the Department of Home Affairs dated 14 August 2018, which was provided to the Tribunal by the applicant, confirms the applicant made the current application for a student Class TU Subclass 500 visa on 8 May 2018 (Decision Record). The Decision Record confirms that the applicant had been initially granted a Student (Class TU) (Subclass 571) visa to come to Australia to study and on 7 March 2016, he was granted a further Class TU573 visa to study. The applicant submitted to the Department his Victorian Certificate of Education which he obtained in December 2015 and an interim transcript from the Universal Institute of Technology dated 14 June 2017, confirming that he was enrolled in a Diploma of Leadership and Management which was to conclude on 11 February 2018, but the Study Plan the applicant provided to the Department dated 3 May 2018, confirmed that he did not pass and obtain that qualification. The Decision Record confirms that at the time of the application for the visa, which is the subject of this review application, the applicant was enrolled to undertake the following courses:-a.Certificate III in Commercial Cookery;b.Certificate IV in Commercial Cookery; andc.Diploma of Hospitality Management.(Hospitality Courses) The Decision Record confirms that the Hospitality Courses were to end on 2 March 2020. The Tribunal, in the 24 February Letter, invited the applicant to provide information in writing about the course(s) of study he was undertaking and about his entry and stay in Australia as a student. The invitation stated:As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:· enrolled in a registered course of study; and· a genuine applicant for entry and stay as a student.Accordingly, you will need to provide sufficient evidence to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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