Spollen (Migration)

[2020] AATA 3572

Spollen (Migration) [2020] AATA 3572 (7 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gerard Spollen

CASE NUMBER:  1910140

HOME AFFAIRS REFERENCE(S):          BCC2018/5549257

MEMBER:M. Edgoose

DATE:7 July 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 07 July 2020 at 10:00am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–   applicant failed to provide the requested information within the prescribed period –not currently enrolled in a registered course of study –no current confirmation of enrolment–  decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212

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 3 April 2019 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 10 December 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 cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The applicant provided a copy of the decision record to the Tribunal.

5. The applicant was assisted in relation to the review by their registered migration agent.

6. On 30 April 2020 the Tribunal formally wrote to the applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal, including information in relation to enrolment by 14 May 2020. The Tribunal did not receive any response to that written invitation. That is, the applicant has not provided the Tribunal with any further information than that which was provided to the Department.

7. The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act. That invitation stated that it is a requirement of the student visa that the applicant is enrolled in a course of study and that the applicant is a genuine applicant for entry and stay as a student and requested information which goes towards both criteria. The invitation was sent to the applicant’s nominated address, being the address provided by the applicant in connection with this application for review. 

8. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1).

9. The Tribunal finds that the applicant did not provide further information as requested. In these circumstances, the applicant is not entitled to appear before the Tribunal: section 360(3). Crucially, the effect of section 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

10. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the 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 applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

    Enrolment (cl.500.211)

    500.211One of the following applies:

    (a)       the applicant is enrolled in a course of study;

    (b)if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

    (c)if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;

    (d)if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.

14. The Tribunal has had regard to the information on the Department file. The Tribunal acknowledges that the applicant submitted two Confirmation of Enrolment’s to the Department for a packaged course in Human Resources. The courses were for a Certificate IV in Human Resources commencing on 19 November 2018 followed by a Diploma of Human Resources commencing on 25 November 2019 and ending on 22 November 2020. These COE’s for the courses was created on 23 November 2018. The delegate’s decision confirmed that the applicant was enrolled in a Diploma of Human Resources course at time of his visa application and at time of the delegate’s decision. The Tribunal is satisfied the applicant was enrolled when he applied to the Department and time of the delegate’s decision, but the applicant has not provided anything to the Tribunal to confirm that he is still enrolled. As such the Tribunal cannot be satisfied the applicant is still enrolled given the time which has elapsed. Given this the Tribunal is not satisfied that at time of this decision that the applicant is enrolled in a course of study.

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. 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.

17. ‘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.

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.

    M. Edgoose
    Member