Munkhbayar (Migration)

[2020] AATA 4451

Munkhbayar (Migration) [2020] AATA 4451 (12 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Munkhsukh Munkhbayar

CASE NUMBER:  1916475

HOME AFFAIRS REFERENCE(S):          BCC2019/1560125

MEMBER:Vanessa Plain

DATE:12 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 12 August 2020 at 4:04pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– failed to provide the requested information within the prescribed period – genuine temporary entrant criterion not met–– no evidence of current confirmation of enrolment­– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212

Education Services for Overseas Students Act 2000

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 6 June 2019 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 28 March 2019. 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).

4. On 7 May 2020 the Tribunal formally wrote to the review applicant pursuant to section 359(2) of the Act, via their nominated email address, inviting the applicant to provide further information to the Tribunal, including information in relation to enrolment.

5. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information to the email address as set out on their application. 

6. The Tribunal has not received any requests for extensions of time to provide information, nor has it received any information from the review applicant in response to the request for information.

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 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.

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.

   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. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

11. 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.

12. ‘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.

13. The Tribunal observes that when the applicant applied for the student visa to the Department the applicant confirmed that they were then, a current holder of a Confirmation of Enrolment.  Further, the Tribunal notes that there is a COE on the Tribunal file demonstrating that the applicant held an enrolment in a General English course between 29 April 2019 and 12 April 2020.

14. However, there is no recent evidence before the Tribunal for it to be satisfied that the applicant is currently enrolled in a course of study as required by cl.500.211. 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.

15. The Tribunal notes that there is a movement record pertaining to the applicant on the Tribunal file.  The Tribunal has not afforded any weight to the matters contained in that document in reaching the conclusions herein.

16. Accordingly the decision under review must be affirmed.

    DECISION

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

    Vanessa Plain
    Member