Liu (Migration)

[2019] AATA 6304

Liu (Migration) [2019] AATA 6304 (9 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Xiaoyu Liu
Chi Shing Wong
Tsam Ying Wong

CASE NUMBER:  1805461

HOME AFFAIRS REFERENCE(S):          BCC2017/4572614

MEMBER:T. Quinn

DATE OF ORAL DECISION:  9 December 2019

DATE OF WRITTEN STATEMENT:         9 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 09 December 2019 at 11:11am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –genuine temporary entrant criterion not met – currently not enrolled in a registered course of study – no current confirmation of enrolment –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 338, 347, 359
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212
Education Services for Overseas Students Act 2000

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 (‘the Minister’) on 15 February 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicants applied for the visa on 2 December 2017 (‘the application’).  At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The primary applicant (‘the applicant’) applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 15 February 2018, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212(a) of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student because they did not intend genuinely to stay in Australia temporarily. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 1 March 2018, the applicants applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. More than 21 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of his application for review. To this end, on 15 October 2019, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The applicant responded to this invitation by the prescribed day on 28 October 2019.

6. The applicant appeared via telephone hearing before the Tribunal on 9 December 2019 to give evidence and present arguments.

7. The applicants were assisted in relation to their review by their Migration Agent but the Migration Agent did not attend the hearing.

8. The Tribunal hearing was arranged to be conducted with the assistance of an interpreter in the Mandarin and English languages, however, the applicant requested the hearing proceed in English and indicated she would use the services of the interpreter if and when required which she did do.

9. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

10. The Tribunal has concluded that the decision under review should be affirmed.  The Tribunal gave its decision on the review at the conclusion of the hearing held on 9 December 2019.  The following are the reasons for that decision.

    STATUTORY FRAMEWORK

11. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. While the determinative issue before the delegate was whether the applicant met the genuine temporary entrant criteria under clause 500.212 of the Regulations, it became clear at the outset of the hearing that the applicant did not meet other criteria that must be satisfied for the grant of a student visa.

    Enrolment (clause 500.211)

13. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: clause 500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

14. ‘Course of study’ is relevantly defined in clause 500.111 of the Regulations as a ‘full-time registered course’. Registered course’ is defined in rule 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 HEARING

15. In the introduction to hearing, the Tribunal stated that in an application for review of this type, it must consider certain things:

    a.one is whether you are enrolled in a course of study (cl500.211(a)); and

    b.the other is whether you are a genuine applicant for entry and stay as a student intending genuinely to stay in Australia temporarily (cl 500.212(a)).

16. The Tribunal then asked if the applicant had any questions to which they responded in the negative.

17. The Tribunal also confirmed that the applicant had read the s359(2) letter and associated questionnaire, including the questions contained in that questionnaire and the applicant indicated she had read the letter and read and responded to the questions in the questionnaire with the help of her Migration agent.

18. The s359(2) letter stated ‘[a]s 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.’

19. The questionnaire to be completed pursuant to the s359(2) letter makes several requests for information relating to the enrolment condition contained in clause 500.211 of the Regulations. In the section of the questionnaire making these enquiries, the document also states “[n]ot being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.” Here, the questionnaire specifically asks the following question: ‘Does the Main Applicant have a current Confirmation of Enrolment (C oE) in a registered course of study?’ The applicant responded ‘no’ to this question, indicating she is not currently enrolled in a registered course of study. The Tribunal also notes that the applicant answered other similar questions throughout the questionnaire in a consistent manner (indicating she is not currently enrolled). Specifically, it requests information in relation to all enrolments and specifically states that this includes: cancelled enrolments; courses successfully completed; and current or future enrolments. The applicant did not list any current or future enrolments.

20. The applicant’s evidence at hearing was that she does not have a confirmation of enrolment and is not currently enrolled in a course of study.

21. The Tribunal considered and explained that the determinative issue in the applicant’s case had changed as a current confirmation of enrolment has not been provided and the applicant’s own evidence was that she understood and that she is not currently enrolled.  

22. The Tribunal has no evidence of a current Confirmation of Enrolment which would establish that the applicant meets the essential requirement under clause 500.211(a) of the Regulations.

23. The applicant has had an adequate opportunity to obtain such evidence and certainly since receiving the s359(2) letter in October of this year which made clear the importance of the enrolment criteria. In the circumstances, the question of whether the applicant meets the criteria under clause 500.211 has become determinative for the purposes of the case before the Tribunal. If the applicant does not meet the criteria under clause 500.211, then there is no utility in the Tribunal proceeding to consider whether the genuine temporary entrant criteria are met under clause 500.212.

24. The applicant does not meet the regulatory requirements for the grant of a student visa because there is no evidence satisfying any of the criteria in clause 500.211 of the Regulations.

    CONCLUSIONS

25. Therefore, the Tribunal is not satisfied that at the time of its decision, the applicant was enrolled in a course of study and accordingly clause 500.211 of the Regulations is not met.

26. 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.

27. Consequently, as the decision in relation primary applicant’s review has been affirmed, the Tribunal cannot be satisfied that clause 500.311 in Schedule 2 of the Regulations is met by the secondary applicants as it requires that they be a member of the family unit of a person who satisfies, or has satisfied, the relevant primary criteria.

28. Therefore, the criteria for the grant of a Student visa are not met by the secondary applicants and the decision in relation to the secondary applicants’ review must also be affirmed.

    DECISION

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

    T. Quinn

    Member