SIN (Migration)

[2020] AATA 1834

SIN (Migration) [2020] AATA 1834 (6 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss YANN PHERN SIN

CASE NUMBER:  1814676

HOME AFFAIRS REFERENCE(S):          BCC2018/1220425

MEMBER:Peter Booth

DATE:6 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 06 March 2020 at 9:24am

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

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

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 4 May 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 March 2018. 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.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not a genuine temporary entrant.

4. On 6 November 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about the application for review in writing. The invitation was sent to the last address provided in connection with the review .The applicant was informed that, if the information was not provided in writing by the prescribed period, being 20 November 2019, 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 11 November 2019. However the applicant did not identify the duration of time required within which to provide the information. On 12 November 2019 Tribunal again wrote to the applicant and requested that the applicant “indicate the additional length of time required”. By email dated 17 January 2020 the applicant wrote to the Tribunal and said “I can provide all my past academic certificate and transcript are completed in Australia, also I wish to meet and explain in person. Is able to arrange any hearing for me”. The applicant has not provided information to the Tribunal by 20 November 2019 or at all in response to the request to provide information dated 6 November 2019. The applicant did not respond to the email from the Tribunal requesting that she identify that the duration of any extension of time within which to provide information. 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 currently enrolled in a registered course of study.

   Enrolment (cl.500.211)

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 respond to the invitation to provide information to the Tribunal. There is no evidence before the Tribunal as to whether the applicant is currently enrolled in a registered course of study. This is a critical matter of which the Tribunal must be satisfied at the time of making the decision. Accordingly the Tribunal is not satisfied that the applicant is currently enrolled in a registered course of study.

11. 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

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

    Peter Booth
    Member