Nguyen (Migration)

[2020] AATA 3148

Nguyen (Migration) [2020] AATA 3148 (16 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss. Hoang Nhu Nguyen

CASE NUMBER:  1900047

HOME AFFAIRS REFERENCE(S):          BCC2018/3484502

MEMBER:P. Adami

DATE:16 June 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 16 June 2020 at 12:10pm

CATCHWORDS

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

LEGISLATION

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

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 18 December 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 September 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 27 March 2020, 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 and being a genuine applicant for entry and stay as a student. The invitation was sent to the applicant’s registered migration agent Mrs. Thi Ngoc Anh Nguyen of IEMC Global at the email address provided by the applicant in her 2 January 2019 application for review.

5. On 14 April 2020, Mrs. Nguyen sought an extension of time to provide the information sought by the Tribunal. The applicant was granted an extension to provide the information to 12 May 2020. On 11 May 2020, the applicant filed with the Tribunal a completed Request for Student Visa Information.

6. In her completed Request for Student Visa Information, in the section headed “Hearing information’, the applicant was asked, “Do you and any other applicants consent to the Tribunal deciding the review without a hearing?” The applicant answered, “No, I/we do not consent to the Tribunal deciding the review without a hearing.”

7. On 9 June 2020, the applicant filed a ‘Change of Contact Details - MR Division’ form with the Tribunal in which she withdrew Mrs. Nguyen as her authorised representative and authorised recipient. The applicant also filed a ‘Response to hearing invitation- MR Division’ on 9 June 2020, in which she indicated that she and Mrs .Nguyen would not be taking part in the 12 June 2020 hearing.

8. It is appropriate to note 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.

9. 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 and to the Tribunal.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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 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.

12. 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.

13. In the section headed ‘Information about enrolment and study in Australia’, the applicant is asked “Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?” to which the applicant answered “No”. The applicant does not list any proposed study after her entry of an enrolment in a Diploma of Leadership and Management, which course she enrolled in October 2018, but which course she states she “Did not complete”.

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 applicant applied for the student visa to the Department she confirmed that she was then, a current holder of a Confirmation of Enrolment. There is no recent or cogent 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. Further, the applicant’s answer in her completed Request for Student Visa Information that she does not hold a COE is clear.

16. 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

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

    P. Adami

    
    

    Member