LIU (Migration)

[2020] AATA 2081

LIU (Migration) [2020] AATA 2081 (2 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss. Wenhui LIU

CASE NUMBER:  1809907

HOME AFFAIRS REFERENCE(S):          BCC2018/730648

MEMBER:P. Adami

DATE:2 March 2020

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 02 March 2020 at 1:34pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – enrolment in a registered course – decision under review affirmed    

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359C, 360, 363
Migration Regulations 1994 (Cth), r 1.03; 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 Home Affairs on 21 March 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 13 February 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia as a full time student.

4. On 31 October 2019, the Tribunal formally wrote to the review applicant pursuant to section 359(2) of the Act, inviting the applicant to provide further information to the Tribunal, including information as to her enrolment. The Tribunal has not received a response to the written invitation to provide information. The Tribunal has considered the material in the Department file and the Tribunal file.

5. 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 email address, being the email address provided by the applicant in her 9 April 2018 application for review. The Tribunal notes that on 2 January 2020, the applicant wrote to the Tribunal enquiring as to the progress of her application from her earlier provided email address.

6. 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).

7. 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.

8. 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.

   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.

10. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study:

    500.211          One of the following applies:

    (a) the applicant is enrolled in a course of study;

    (b) if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

    (c) if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;

    (d) if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.

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. The applicant does not claim to meet any of the alternative criteria in cl.500.211.

12. The Tribunal observes that when the applicant applied for the student visa to the Department she confirmed that she was then, a current holder of a Confirmation of Enrolment (COE). The delegate in their 21 March 2018 decision states, “On your incoming passenger card you stated that you came to Australia for eight (8) days holiday with no intention to study, however you are currently enrolled to study until March 2020.” There is no other evidence as to the applicant’s enrolment before the Tribunal, and no recent evidence before the Tribunal for it to be satisfied that the applicant is currently enrolled or has been enrolled in a course of study as required by cl.500.211.

13. As such, the tribunal cannot be satisfied that the criteria for the grant of a Subclass 500 (Student) visa are met. The applicant does not claim to meet the criteria for a Subclass 500 (Student Guardian) visa. Accordingly the decision under review must be affirmed.

    DECISION

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

15. P. Adami

    
    

    Member