Matara Arachchi Vidanelage (Migration)

[2019] AATA 2847

Matara Arachchi Vidanelage (Migration) [2019] AATA 2847 (3 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tharaka Lakshan Matara Arachchi Vidanelage

CASE NUMBER:  1726255

HOME AFFAIRS REFERENCE(S):           BCC2017/2999554

MEMBER:Elizabeth Tueno

DATE:3 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 03 June 2019 at 3:49pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant – not enrolled in an approved course at the time of decision – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), ss 65, 359, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 500.111, 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 Immigration and Border Protection on 23 October 2017 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 21 August 2017. 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 she was not satisfied that the applicant intended genuinely to stay in Australia temporarily.

4. On 25 February 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 by 12 March 2019.  The Tribunal did receive a response to that written invitation however it was outside of the requisite time period.  In reaching its decision, the Tribunal has taken into account the documents that have been provided by the applicant.

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.  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) of the Act.

6. 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) of the Act.  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.

7. 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 necessary to enable the examiner to establish the relevant facts.

8. In these circumstances, the Tribunal has proceeded to make a decision having regards to all the information before it, including the information previously provided by the applicant to the Department.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. The issue before the delegate was whether the applicant met the criterion in clause 500.212. However, the issue now is whether at the time of this decision, the applicant meets the enrolment requirements for a student visa pursuant to cl.500.211.

12. 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.

13. ‘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.

14. At the time of the delegate’s decision on 23 October 2017, the applicant was enrolled to undertake study in a Certificate III in Automotive Electrical Technology, Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology. 

15. In the information provided by the applicant to the Tribunal, the applicant states that he completed the Certificate III in Automotive Electrical Technology in April 2018.  He completed the Certificate IV in Automotive Mechanical Diagnosis in September 2018.  In relation to the Diploma of Automotive Technology, he states that he commenced this course in September 2018 and stated that the course would end in May 2019.  He also provided a confirmation of enrolment which confirms that the course commenced on 10 September 2018 and had an end date of 12 May 2019. 

16. The applicant has not provided any documents that show he is currently still undertaking the Diploma of Automotive Technology and that he remains enrolled in this course.

17. Based on the evidence provided by 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.  Therefore, the Tribunal is not satisfied that the applicant meets cl.500.211.

18. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met.  Accordingly, the decision under review must be affirmed.

    DECISION

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

    Elizabeth Tueno
    Member