Sharma (Migration)

[2019] AATA 3318

Sharma (Migration) [2019] AATA 3318 (27 June 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rohit Sharma

CASE NUMBER:  1803663

DIBP REFERENCE(S):  BCC2017/4304461

MEMBER:Roger Maguire

DATE OF DECISION:  27 June 2019

DATE CORRIGENDUM

SIGNED:5 September 2019

PLACE OF DECISION:  Brisbane

AMENDMENT:  The following corrections are made to the decision:

1. The date “27 June 2013” on the first page should be amended to “27 June 2019”.

   Roger Maguire
   Member

   
   

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   APPLICANT:  Mr Rohit Sharma

   CASE NUMBER:  1803663

   HOME AFFAIRS REFERENCE(S):          BCC2017/4304461

   MEMBER:Roger Maguire

   DATE:27 June 2013

   PLACE OF DECISION:  Brisbane

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

   Statement made on 27 June 2019 at 2:04pm

   CATCHWORDS
   MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–genuine temporary entrant criterion not met – applicant failed to provide requested information – no entitlement to a hearing –currently not enrolled – decision under review affirmed

   LEGISLATION
   Migration Act 1958, ss 65, 359, 360, 363, 499
   Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.218
   Education Services for Overseas Students Act 2000

   CASES
   Hasran v MIAC [2010] FCAFC 40
   Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
   Kaur v Minister for Immigration and Border Protection [2014] FCA 915
   Manna v Minister for Immigration and Citizenship [2012] FMCA 28
   Minister for Immigration and Citizenship v Li[2013] HCA 18
   Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

   STATEMENT OF DECISION AND REASONS

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 January 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

3. The applicant applied for the visa on 16 November 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.

4. 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 found that the applicant did not intend to stay temporarily in Australia.

5. On 17 April 2019 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide information about the course(s) of study he was undertaking, and his entry and stay in Australia as a student in writing.

6. 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 1 May 2019 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The review applicant has not provided 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 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:[1]

   [1] Hasran v MIAC [2010] FCAFC 40

8. The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the review applicant has had a fair opportunity to provide relevant information already.

9. The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to Minister for Immigration and Citizenship v Li[4] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[5] which considered analogous issues, as well as the recent decision of Kaur v Minister for Immigration and Border Protection.[6]

   [2] [2002] FCA 617

   [3] [2012] FMCA 28

   [4] [2013] HCA 18 (8 May 2013)

   [5] [2014] FCAFC 1 (4 February 2014)

   [6] [2014] FCA 915 (28 August 2014)

10. In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information.

11. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the review applicant to the Department.

12. Ultimately, a decision maker is not required to make the review applicant’s case. It is for the review 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 review applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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 currently enrolled in a course of study.

    Enrolment (cl.500.211)

15. 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.

16. ‘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.

17. There is not sufficient evidence before the Tribunal that the applicant is currently enrolled in a course of study.  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.

18. 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

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

    Roger Maguire
    Member