Nirmaan (Migration)

[2018] AATA 5822

Nirmaan (Migration) [2018] AATA 5822 (7 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Khushdeep Kaur Nirmaan

CASE NUMBER:  1714027

HOME AFFAIRS REFERENCE(S):           BCC2017/1025479

MEMBER:Mark Bishop

DATE:7 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 07 December 2018 at 9:40am

CATCHWORDS
MIGRATION – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – genuine applicant for entry and stay as a student – unsatisfactory course progress – period of non-study and breach of conditions – applicant did not request an extension of time – information not provided within prescribed period and no extension granted – no Genuine Temporary Entrant (GTE) Statement provided – Certificate of Enrolment (COE) cancelled due to non-commencement of studies – use of student visa program to maintain ongoing residence in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359C, 359(2), 360(3), 363A, 499
Migration Regulations 1994, Schedule 2, cls 500.211-500.218
Ministerial Direction No 69

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 13 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 15 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 was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. The applicant provided a copy of the decision record to the Tribunal. The decision record contained a history of the applicant’s immigration visa and study history in Australia. The decision record outlined the applicant’s Bachelor of Commerce COE cancellation due to unsatisfactory course progress. The decision record outlined a nine month period of non-study between June 2016 and March 2017 and breach of condition 8202 attached to his visa. The applicant did not challenge these findings.

5. The Tribunal wrote to the applicant on 13 August 2018 requesting information under s.359(2) of the Act in the following terms:

   ·As you applied for this visa on the basis of undertaking a course of study in Australia, it is a requirement for the visa that you are enrolled in a registered course of study and that you are a genuine applicant for entry and stay as a student.

   ·Accordingly, you are now invited to give, in writing, information about your proposed course(s) of study and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information questionnaire attached with this letter. The information requested should be given by completing the attached questionnaire and returning it to us.

6. The Tribunal advised the information should be provided by 27 August 2018 or the applicant had the right to seek an extension of time. The applicant did not respond within time and did not request an extension of time.

7. The review applicant has not provided the 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 applicants are 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.

8. At this point 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.

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

10. The Tribunal resolved the review application on the papers.

11. For the following reasons, the Tribunal has concluded that the matter 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.

    Genuine applicant for entry and stay as a student (cl.500.212)

13. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

14. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

15. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

16. The applicant did not provide a Genuine Temporary Entrant (GTE) Statement to the Department.

17. The applicant provided copies of Graduation Certificates in Commercial Cookery and Aged Care.

18. The applicant provided copies of Confirmation of Enrolment (COE) in a Bachelor of Business in the period 24 July 2017 until 30 June 2019. This COE was later cancelled by the education provider due to “non-commencement of studies”.

19. In his application for a student visa the applicant advised the Department she would like to extend his student visa so she could complete her Diploma of Hospitality and Bachelor of Business. She advised a detailed GTE Statement would be attached after lodgement. It was not lodged with the Department.

20. The applicant did not provide a GTE Statement to the Tribunal.

21. The applicant did not respond to a Request for Student Visa Information under s.359(2) of the Migration Act.

22. The applicant did not provide any information to the Tribunal about course progress or status of current enrolment in a course of study. The Tribunal notes the applicant previously provided a COE to the Department as outlined in paragraph 18 above. The delegate made a finding this COE was cancelled by the education provider due to “non-commencement of studies”.

23. The applicant did not provide any information to the Tribunal that was not before the Department. There is minimal information before the Tribunal.

24. The applicant did not challenge the findings of the delegate.

25. The Tribunal has reviewed all the information on the Departmental and Tribunal file. There is no information before the Tribunal that suggests the findings of the delegate were incorrect in any way.

26. There is insufficient evidence before the Tribunal regarding the following factors indicated by Direction 69: whether the applicant has reasonable reasons for not undertaking the study in his home country, any potential military service in the home country, political circumstances in the home country (excluding a brief reference to sanctions as outlined above), remuneration the applicant could expect to receive in the home country compared with Australia, the value of the course to the applicant’s future employment, circumstances in the home country relative to Australia or any other country and the applicant’s circumstances in the home country relative to others in that country.

27. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. Having not provided any information to the Tribunal, the applicant is mostly relying on limited documentation previously provided to the Department. In this review application the Tribunal is concerned that the applicant proposes to use the student visa program primarily in order to maintain ongoing residence in Australia.

28. In all the circumstances, the Tribunal is unable to conclude that the applicant is a genuine temporary entrant. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

29. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

30. 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

31. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (ClassTU) visa.

    Mark Bishop
    Member