Prapawong (Migration)

[2020] AATA 3093

Prapawong (Migration) [2020] AATA 3093 (26 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Pimpan Prapawong
Miss Rungtip Yodphrom

CASE NUMBER:  1823337

HOME AFFAIRS REFERENCE(S):          BCC2018/2221993

MEMBER:Darren Renton

DATE:26 June 2020

PLACE OF DECISION:  Perth

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

Statement made on 26 June 2020 at 8:56am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine entrant as student – current enrolment – limited academic progress – cancellation of courses – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, r 1.03; Schedule 2 cls 500.211, 500.212, 500.311

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 9 August 2018 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 23 May 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 visas 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 applicant was not a genuine applicant for entry and stay as a student. A copy of the decision was provided to the Tribunal by the applicant.

4. The Tribunal wrote to the applicant pursuant to s.359(2) of the Act, on 2 March 2020 inviting her to provide information to satisfy it that she met her visa requirements regarding enrolment in a registered course of study and being a genuine applicant for entry and stay as a student and to give, in writing, all relevant information about the course(s) of study she was undertaking and her entry and stay in Australia as a student. The invitation was sent to the applicant’s email address provided to the Tribunal in her application for review and advised that, if the information was not provided in writing by the prescribed period, being 16 March 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.

5. The review 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. 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 a decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 now whether the applicant is enrolled in a course of study.

8. 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.

9. ‘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.

10. As noted in the delegate’s decision, the applicant applied for her most recent student visa in order to complete a Certificate IV in Human Resources, a Diploma of Human Resources and an Advanced Diploma of Management (Human Resources).  These courses would have given the applicant an anticipated completion date of around August 2021.

11. Given the applicant’s history of poor study outcomes including a previous breach of her visa condition (8202) and two reports of failure to maintain satisfactory attendance, a real question arises as to whether the applicant has commenced her proposed studies and maintained her enrolment in them.

12. By failing to respond to the Tribunal’s request regarding her present state of enrolment, the applicant has not furnished the Tribunal with evidence of any current intended course of study in Australia or activities related to study in Australia.  The applicant has not provided the Tribunal with a current confirmation of enrolment (that has not been cancelled or revoked) or a current letter of offer (that has not been cancelled or revoked) from an education provider.

13. Further, a review of the applicant’s PRISMS report shows that her enrolment in the courses set out at [10] above, were cancelled on 29 November 2018 for non-payment of fees and non-commencement of studies. No further enrolments have been made by the applicant.

14. Given the matters in [11] – [13] above, the evidence indicates that the applicant is not presently studying or enrolled to do so.

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.

17. As the main applicant does not meet the criteria for a grant of a student visa, it follows that the secondary applicant does not meet cl.500.311.

    DECISION

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

    Darren Renton
    Member