Lim (Migration)

[2019] AATA 326

Lim (Migration) [2019] AATA 326 (14 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kaun Wah Lim
Ms Lee Yoon Chin

CASE NUMBER:  1715193

HOME AFFAIRS REFERENCE(S):           BCC2017/1237999

MEMBER:Peter Haag

DATE:14 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 14 February 2019 at 4:11pm

CATCHWORDS

MIGRATION – Student (Temporary)(Class TU) – Subclass 500 (Student) – genuine temporary entrant criteria – no course enrolment – secondary applicant does not meet requirements – decision under review affirmed

PRACTICE AND PROCEDURE – no entitlement to hearing – decision made on review

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 500.211, 500.212, 500.311

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 30 June 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 31 March 2017. 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 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 intends genuinely to stay in Australia temporarily.

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 determinative issue in the present case has changed from the issue before the delegate to whether the applicant is enrolled in a registered course of study.

6. 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.

7. ‘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.

8. On 9 January 2019 the Tribunal wrote to the applicant in accordance with s.359(2) of the Act, requesting him to provide to the Tribunal information about the registered course(s) of study he is undertaking in Australia. The s.359(2) request advised the applicant if he did not provide the requested information within the time allowed (by 23 January 2019) or as extended, the Tribunal may make a decision on review without taking any further action to obtain the requested information. The request also advised the applicant that if he did not provide the requested information within the allowed time or as extended, he will lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The applicant did not provide the requested information about the courses of study he is undertaking and the applicant did not request an extension of time in which to fulfil the request.

10. The Tribunal is satisfied the s.359(2) request for information was in proper form and was properly served on the applicant. 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 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.

11. On the available evidence the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a registered course of study and accordingly cl.500.211 is not met.

12. 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 regarding the primary applicant must be affirmed.

13. The Tribunal has found the primary applicant Kaun Wah Lim has not met the requirements of cl.500.212 of the Act, consequently the Tribunal finds the secondary applicant Lee Yoon Chin has not met the requirements of cl.500.311 of the Act; on that basis no further assessment with regard to her application has been undertaken.

14. The Tribunal is satisfied on the basis that Lee Yoon Chin has not met the requirements of cl.500.311 that the decision of the delegate in her case must be affirmed.

    DECISION

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

    Peter Haag
    Member