Nguyen (Migration)

[2020] AATA 71

Nguyen (Migration) [2020] AATA 71 (6 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dang Hong Khanh Nguyen

CASE NUMBER:  1727145

HOME AFFAIRS REFERENCE(S):           BCC2017/1619897

MEMBER:Steven Griffiths

DATE:6 January 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 06 January 2020 at 12:03pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – no response to s 359(2) invitation – not entitled to appear before the Tribunal – genuine temporary entrant – enrolment in a course of study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 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 18 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 5 May 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).

4. The applicant was assisted by his registered migration agent.

5. On 24 October 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide all relevant information about the course(s) of study he is undertaking and his entry and stay in Australia as a student in writing. The invitation was sent to the applicants registered migration agent, Ms. Thu Bannan, of DLT Immigration and Translation Service, by email [email protected] and advised that, if the information was not provided in writing by 7 November 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. On 29 October 2019 the Tribunal wrote to the applicant inviting him to a hearing, pursuant to s.360(1) of the Act, scheduled for 10 January 2020 and providing the opportunity for any additional information that he may wish to rely upon to be provided by 3 January 2020.

7. On 6 November 2019 the applicant confirmed that he had cancelled he appointment of his migration agent and would from this time be representing himself, while also confirming he would be attending a hearing.

8. The applicant did not provide the information within the prescribed period and no extension of time was requested. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal, with this confirmed by email to the applicant on 12 December 2019. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

9. The applicant contacted the Tribunal on 2 January 2020 seeking the opportunity to present evidence at a hearing, and was advised by the Tribunal on 3 January 2020 this was no longer an option available to him.

10. The applicant contacted the Tribunal on 5 January 2020 outlining a course he had found.

11. It is appropriate to highlight that a decision maker is not required to make the case for the applicant, 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 relevant decision making, the relevant facts of the individual case are to be supplied by the applicant, in as much detail as necessary to enable the examiner to establish the facts.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

14. The Tribunal has read and had regard to information provided by the applicant to the Department (comprising 151 folios). The Tribunal has also read and had regard to the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant with his application for review.

15. The Tribunal notes the delegate’s decision was based around compliance with cl.500.212 of the Regulations and if the applicant was a genuine applicant for entry and stay as a student.

16. The applicant is a 40 year old male from Vietnam, who arrived in Australia in August 2013 on a visitor visa, FA-600, which was to cease on 21/10/13. On 17/10/13 he was placed on a FA-600 visa to expire 21/10/13. On 21/10/13 he was placed on a FA-600 visa to expire 4/2/14. On 4/2/14 he was placed on a WB-010 bridging visa to expire 6/11/14. On 6/11/14 he was placed on a WB-020 bridging visa to expire 22/12/14. On 22/12/14 he was placed on a WA-010 bridging visa to expire 6/6/17. On 5/5/17 he was placed on a WA-010 bridging visa to expire 12/4/19. On 12/4/19 he was placed on a WB-020 bridging visa.  

17. The Tribunal has read and had regard to contact from the applicant of 2 January 2020 and 5 January 2020.   

18. The Tribunal notes the contact from the applicant refers to information being gathered, and a course of interest he had identified, while not providing any information or details of enrolment.  

19. The Tribunal determines the issue in the case is whether the applicant satisfies the primary criteria contained in cl.500.211 of the Regulations, which states the following must be satisfied:-

    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 education 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 Affairs Minister for the grant of the visa;

20. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulation 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 has made no claim to meet any of the alternative criteria of cl.500.211.

21. The Tribunal has not been provided with any information by the applicant that he 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 a grant of a Subclass 500 (Student) visa are 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.

22. DECISION

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

    Steven Griffiths
    Member