Soo (Migration)

[2019] AATA 2255

Soo (Migration) [2019] AATA 2255 (13 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kenneth Kok Kenn Soo

CASE NUMBER:  1718414

HOME AFFAIRS REFERENCE(S):           BCC2017/1036446

MEMBER:Peter O'Farrell

DATE:13 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 13 March 2019 at 5:01pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – enrolled in a course of study – not enrolled in an approved course at the time of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

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 Immigration and Border Protection on 31 July 2017 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 15 March 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.

3. 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).

4. On 11 January 2019, the Tribunal wrote to the review applicant pursuant to section 359 of the Act inviting the applicant to provide further information to the Tribunal about the course(s) of study that the Applicant is undertaking and about the Applicant’s entry and stay in Australia as a student. 

5. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under section 359(2) of the Act. 

6. The invitation was sent to the review applicant’s nominated email address, being the updated email address provided by the review applicant in connection with this application for review.

7. The review applicant has not provided the information within the prescribed period and no extension has been applied for or 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: Hasran v MIAC [2010] FCAFC 40.

8. In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. Clause 500.211 requires relevantly that at the time of this decision the applicant is enrolled in a course of study.  The applicant does not claim to meet any of the alternative criteria in cl.500.211.

11. ‘Course of study’ is relevantly defined in clause 500.11 of Schedule 2 of the Regulations as ‘a full-time registered course.’

12. The Tribunal is not satisfied that at the time of this decision, that the applicant is enrolled in a course of study and accordingly cl.500.21 is not met.  As such, the Tribunal is not satisfied that the criteria for the grant of a Subclass 500 (Student) visa are met.

13. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

14. Accordingly, the decision under review must be affirmed.

15. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met.  

16. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Peter O'Farrell
    Member