PATEL (Migration)

[2019] AATA 3054

PATEL (Migration) [2019] AATA 3054 (31 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr JAYENDRABHAI PUNAMBHAI PATEL
Mrs HINABEN JAYENDRABHAI PATEL

CASE NUMBER:  1719495

DIBP REFERENCE(S):  BCC2017/2293304

MEMBER:Bridget Cullen

DATE AND TIME OF

ORAL DECISION AND REASONS:         31 January 2019 at 12:51 pm (QLD time)

DATE OF WRITTEN RECORD:                27 June 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions under review.

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– financial requirements not met –no evidence provided in relation to  financial capacity – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, Schedule 2, cls 500.214, 500.311

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 8 August 2017 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 31 January 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 August 2017 to refuse to grant the Applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958.

4. The Applicants applied for the visa on 28 June 2017. At the time of application, Class TU contained two subclasses; Subclass 500 (Student) and Subclass 590 (Student Guardian).  The Applicants have applied for the visa to undertake study in Australia and do not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

5. The delegate in this case refused to grant the visa on the basis that the delegate was not satisfied that the Primary Applicant, Mr Jayendrabhai Punambhai Patel (the Applicant) met clause 500.214, in that the Applicant had not provided any information relating to the financial requirements for the visa. The Applicants were assisted in relation to the review by an interpreter and their registered migration agent who appeared with them at the Tribunal.

6. 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 the Applicant. The issue in this case is whether the Applicant meets the financial requirements for the visa as are set out in 500.214.

7. There is little information for the Tribunal to consider, because it remains the case that at the time of hearing, there is no information in front of the Tribunal in relation to the Applicant's financial capacity. This is acknowledged by the Applicant

8. The Applicant has indicated that he would like additional time to submit this information.  The Tribunal has refused that request for the reason that the Applicant has been fairly on notice about financial capacity being the central issue before the Tribunal, at least since the time of delegate’s decision on 8 August 2017.

9. The Tribunal also notes that the Hearing Invitation sent by the Tribunal indicates that information in relation to the hearing should be provided in advance of the hearing or, at worst, at the time of hearing. The request to the Tribunal for an extension of time within which to provide information is unspecific and does not address the reason why the information could not have been provided as at the time of hearing. The Tribunal does not consider that any lack of procedural fairness has been occasioned to the Applicant on the basis of its refusal to allow additional time.

10. As there is no information in front of the Tribunal indicating that the Applicant satisfies the criteria, the Tribunal is obliged to affirm the decision of the delegate.

11. The Tribunal acknowledges that there is also a Secondary Applicant before the Tribunal, that being the wife of the Primary Applicant. As the Tribunal has found that the Primary Applicant does not satisfy the criteria for a student visa, the Tribunal finds that the Secondary Applicant does not satisfy cl.500.311 contained in Schedule 2 of the Migration Regulations, either.

12. For the sake of completeness, the Tribunal will indicate that it has provided the Applicant with a copy of his PRISMS records, which are in front of the Tribunal, at the commencement of the hearing, adopting the procedure set out in s.359AA of the Act. The Applicant indicated that he did not require an adjournment to be able to comment on that information.

13. The Tribunal also notes that it has asked the Applicant if he understood the questions asked by the Tribunal, the impact of there being no information in front of the Tribunal in relation to his financial capacity, and the corresponding likelihood of his being unable to satisfy the financial criteria contained in cl.500.214. The Applicant has indicated that he understood these matters.

    DECISION

14. The Tribunal affirms the decisions under review.

    Bridget Cullen
    Member