Rajbhandari (Migration)

[2021] AATA 2692

Rajbhandari (Migration) [2021] AATA 2692 (6 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nischal Rajbhandari
Mrs Nayana Shrestha

CASE NUMBER:  2003993

HOME AFFAIRS REFERENCE(S):          BCC2019/4260828

MEMBER:Wendy Banfield

DATE:6 June 2021

PLACE OF DECISION:  Canberra

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

Statement made on 06 June 2021 at 9:36pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –not currently enrolled in a registered course of study – no current confirmation of enrolment– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 360, 363, 499
Migration Regulations 1994, rr 1.03, 1.12, Schedule 2, cl 500.211

Education Services for Overseas Students Act 2000

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 24 February 2020 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 27 August 2019. 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 genuine temporary entrant criteria had not been met.

4. On 11 May 2021 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about enrolment in a course of study, in writing. 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 the prescribed period, being 25 May 2021, 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 requested an extension of time on 24 May 2021 and the Tribunal granted an extension until 1 June 2021. The review applicant did not provide the information within or after the period granted. The applicant is currently offshore having returned to Nepal for personal reasons. On 1 June 2021 the applicant requested an extension of time to respond to the invitation until he is able to return to Australia, but the Tribunal did not approve a further extension. 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 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

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 whether the applicant is enrolled in a course of study, as required for the grant of a student visa.

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. The applicant did not provide evidence of enrolment in a course of study as of the date of decision. The applicant did not indicate in his request for an extension of time to respond to the invitation to comment that he meets the enrolment requirements pursuant to cl.500.211 The Tribunal has no information before it to demonstrate the applicant is enrolled.

11. 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.

    Member of Family Unit – Secondary visa applicant

13. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria.  Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

14. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the secondary applicant is unable to meet the criteria because they are not a member of the family unit of a person who satisfies the primary criteria in cl.500.211.

    DECISION

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

    Wendy Banfield
    Member