Lin (Migration)

[2019] AATA 6269

Lin (Migration) [2019] AATA 6269 (3 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chuan-Liang Lin

CASE NUMBER:  1834253

HOME AFFAIRS REFERENCE(S):          BCC2018/3382310

MEMBER:Roger Maguire

DATE:3 December 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 03 December 2019 at 11:15am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant failed to provide requested information– periods of non-enrolment – no current confirmation of enrolment –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 363, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212
Education Services for Overseas Students Act 2000

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li[2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

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 Home Affairs on 8 November 2018 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 6 September 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.

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 found that the applicant did not intend to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 3 December, 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 is currently enrolled in a registered course of study.

   Enrolment (cl.500.211)

8. 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.

9. ‘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.

10. At the hearing the applicant was asked to produce a current confirmation of enrolment in a registered course of study, but was unable to do so.

11. The Tribunal produced to the applicant a copy of his PRISMS Records which showed that he last completed a course – an Advanced Diploma of Leadership and Management – on 8 July, 2018, and since that time has had one enrolment cancelled due to the student notifying cessation of studies, and another cancelled for non-commencement of studies. Both enrolments were cancelled on 28 November, 2018. The Tribunal put to the applicant that as he has no current confirmation of enrolment, that would be all or part of the reason for affirming the decision under review. The applicant was invited to comment on or respond to this, and was invited to seek additional time prior to doing so if he so wished.

12. The applicant replied that his visa was refused in November last year, and his following study was cancelled because he was not satisfied that his visa was cancelled he lodged an appeal application. In addition the applicant said that he did not know that because his visa was cancelled he could continue studying, and he therefore missed out on further study and continued to wait. The applicant stated that his intention to study in Australia is genuine and he could apply to study.

13. The Tribunal notes that the applicant has had over 12 months to obtain a further confirmation of enrolment in a registered course of study and has failed to do so during this period. The Tribunal also notes that on 13 September, 2019, the Tribunal wrote to the applicant seeking information as to his current course of enrolment, and his status as a genuine temporary entrant.

14. On 13 November, 2019, the Tribunal wrote to the applicant specifically requesting him to provide at least seven days before the hearing, a copy of his Confirmation of Enrolment.

15. The Tribunal also notes that on 26 November 2019, and again on 2 December, 2019 the applicant was sent SMS messages reminding him of today’s hearing.

16. The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the review applicant has had a fair opportunity to provide relevant information already.

17. The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered analogous issues, as well as the recent decision of Kaur v Minister for Immigration and Border Protection.[5]

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

18. In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information.

19. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the review applicant to the Department.

20. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

21. 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

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

    Roger Maguire
    Member