Mundun (Migration)

[2020] AATA 2978

Mundun (Migration) [2020] AATA 2978 (14 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr. Pawan Kumar Mundun
Mrs. Renu Chechi Mundun
Miss. Ashmin Mundan

CASE NUMBER:  1911328

HOME AFFAIRS REFERENCE(S):          BCC2018/5630400

MEMBER:P. Adami

DATE:14 May 2020

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 14 May 2020 at 5:35pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – current enrolment – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212, 500.311; r 1.03

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 17 April 2019 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 13 December 2018. 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. On 20 April 2020, the Tribunal formally wrote to the review applicants pursuant to section 359(2) of the Act, inviting the applicants to provide further information to the Tribunal, including information as to the primary applicant’s enrolment as a student. The Tribunal has not received a response to the written invitation from the applicants.

4. The Tribunal is satisfied that the review applicants were properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the review applicants registered migration agent Mrs. Prabhjot Kaur Bains, being the details provided by the primary review applicant in connection with the 6 May 2019 application for review.

5. The Tribunal is mindful that the delegate’s Decision Record states “A Student (subclass TU-500) visa application was lodged with the department on 13 December 2018. A Confirmation of Enrolment (CoE) to undertake the following course of study in Australia was provided:

   ● Advanced Diploma of Leadership and Management (A31CB525).”

6. However, the Tribunal is also mindful that the delegate’s Decision Record is dated 17 April 2019 and the reference to proposed study enrolment has lost its timeliness. Further, the Tribunal does not consider this vague information as founding a reasonable conclusion that the primary applicant is now enrolled in a course of study.

7. 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).

8. The Tribunal finds that the review applicants did not provide further information as requested. In these circumstances, the review applicants are 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.

9. 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.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. 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.

14. ‘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.

15. The Tribunal observes that when the primary applicant applied for the student visa to the Department he confirmed that he was then, a current holder of a Confirmation of Enrolment (COE). Cogent evidence of a current enrolment must be presented to the Tribunal before it can make a finding that the applicant is currently enrolled in a registered course of course of study for the purposes of cl.500.211. For example, the primary applicant might have filed a current COE, Academic Transcript or Statement of Results that has been issued to him for any current studies. The Tribunal considers that there is no recent and cogent evidence before it to be satisfied that the primary applicant is enrolled in a course of study as required by cl.500.211.

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

17. As the primary applicant does not meet clause 500.212(a), the secondary applicants do not satisfy clause 500.311 being a member of the family unit of a person who holds a student visa. Accordingly, the decision under review, in respect of the secondary applicants, must be affirmed.

    DECISION

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

    P. Adami
    Member