Prajapati (Migration)

[2020] AATA 3425

Prajapati (Migration) [2020] AATA 3425 (1 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dhavalkumar Pravinbhai Prajapati
Mrs Priyanka Ghanshyambhai Prajapati

CASE NUMBER:  1901873

HOME AFFAIRS REFERENCE(S):          BCC2018/4951100

MEMBER:M. Edgoose

DATE:1 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 01 July 2020 at 2:10pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not a genuine temporary entrant – no response to tribunal request for information – no evidence of enrolment – decision under review affirmed

LEGISLATION

Education Services for Overseas Students Act 2000

Migration Act 1958 (Cth), ss 65, 359(2), 360(3), 363A

Migration Regulations 1994, Schedule 2, cls 500.212(a), 500.111, 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 Home Affairs on 8 January 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 8 November 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 review applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The applicant provided a copy of the decision record to the Tribunal.

5. The applicants were assisted in relation to the review by their registered migration agent.

6. On 7 April 2020 the Tribunal formally wrote to the applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal, including information in relation to enrolment by 21 April 2020. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by the prescribed period, being 7 May 2020, or within any extended time as requested and granted, 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.

7. The applicant’s registered migration agent requested an extension of time on 23 April 2020 The Tribunal granted an extension until 19 May 2020. The applicant did not provide the information within or after the period granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

8. It 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 proceeded to make a decision having regard to the information before it, including the information previously provided by the applicant to the Department.

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.

    Enrolment (cl.500.211)

    500.211One 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.

12. The Tribunal has had regard to the information on the Department file. The Tribunal acknowledges that the applicant has completed several qualifications since arriving in Australia in May 2013. According to a statement by the applicant on the Department file he has completed a Master of Business Administration and a Master of Professional Accounting through Homes Institute in 2016 before being granted a Temporary Graduate 485 Visa. The applicant then claims to have enrolled in a Certificate IV in Marketing and Communication course packaged with a Diploma of Marketing and Communication through MACI. The delegate’s decision mentions that the applicant provided Confirmation of Enrolments for the Certificate IV in Marketing and Communication and Diploma of Marketing and Communication at time of his visa application on 8 November 2018. The Tribunal is satisfied the applicant was enrolled when he applied to the Department on 8 November 2018, but the applicant has not provided anything to the Tribunal to confirm that the applicant is still enrolled. As such the Tribunal can not be satisfied the applicant is still enrolled given the time which has elapsed.

13. 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.

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.

15. 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.

16. 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.

    Secondary applicant

17. As the review applicant Mr Dhavalkumar Pravinbhai Prajapati was found not to meet clause 500.211 in Schedule 2 of the Migration Regulations, the secondary applicant Mrs Priyanka Ghanshyambhai Prajapati does not satisfy clause 500.311 in Schedule 2 of the Migration Regulations.

    DECISION

18. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    M. Edgoose
    Member