NGUYEN (Migration)

[2019] AATA 3052

NGUYEN (Migration) [2019] AATA 3052 (11 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr VAN TOAN NGUYEN

CASE NUMBER:  1714464

HOME AFFAIRS REFERENCE(S):          BCC2017/947027

MEMBER:Roger Maguire

DATE:11 May 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 11 May 2019 at 12:54pm          

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – applicant did not satisfy the requirements – applicant did not genuinely intend to live temporarily in Australia – no evidence that the applicant is currently enrolled in a course of study – decision under review affirmed

LEGISLATION

Education Services for Overseas Students Act 2000

Migration Act 1958 (Cth), ss 65, 359, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2 cls 500.111, 500.211-500.218, 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 Immigration and Border Protection on 22 June 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 10 March 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 the delegate found that the applicant did not genuinely intend to live temporarily in Australia.

4. On 2 April 2019 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide information about the course(s) of study he was undertaking, and his entry and stay in Australia as a student in writing.

5. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 16 April 2019 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The review applicant has not provided information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. 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. The Tribunal has decided to proceed to decision without taking further steps to obtain the information .

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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. The issue in the present case is whether at the time of this decision the applicant is enrolled in a course of study.

   Enrolment (cl.500.211)

9. 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.

10. ‘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.

11. There is no evidence before the Tribunal that the applicant is currently enrolled in a course of study. Therefore, 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.

12. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not 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.

    DECISION

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

    Roger Maguire
    Member