Tan (Migration)

[2021] AATA 190

Tan (Migration) [2021] AATA 190 (25 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ah Hwa Tan
Ms Kim Bee Lai

CASE NUMBER:  1933847

HOME AFFAIRS REFERENCE(S):          BCC2019/4835222

MEMBER:Robert Cumming

DATE:25 January 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) Subclass 500 visas.

Statement made on 25 January 2021 at 9:11am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – travel and study history – one course completed and six enrolments cancelled – no return to home country – no current enrolment – no response to tribunal’s invitations to provide information or comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211(a), 500.212(a)

CASE
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 now Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on 13 November 2019 to refuse to grant the applicants Student (Temporary) (Class TU) Subclass 500 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 26 September 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 visa on the basis the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations), because the delegate was not satisfied the applicant intended genuinely to stay in Australia temporarily.

4. On 9 June 2020, the Tribunal wrote to the applicants pursuant to the provisions of s.359(2) of the Act requesting the applicant to provide information concerning the applicant’s enrolment in a course of study and also as to his status as a genuine applicant for entry and stay as a student and inviting the applicant to complete and return a Request for Student Visa Information form (information form).

5. 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 23 June 2020, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant did not provide the information within the prescribed period and made no application for an extension of time within which to provide the requested information. Consequently, no extension has been granted.

7. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are 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. The Tribunal subsequently embarked upon its consideration of the evidence with a view to making a decision on the review application.

9. During that consideration, the Tribunal became aware of information that, if it was accepted by the Tribunal, the Tribunal considered that this information would be the reason or part of the reason for affirming the decision under review. That information went to the issue of whether the applicant was currently enrolled and as to whether the applicant intended genuinely to stay in Australia temporarily.

10. The information was contained in printouts from the Provider Registration and International Student Management System (PRISMS) and the Departmental movement details.

11. Both printouts were provided to the applicant under cover of a letter dated 5 January 2021 and written pursuant to the provisions of s.359A of the Act.

12. The Tribunal advised the applicant in the s.359A letter that the information in the PRISMS records might lead the Tribunal to a conclusion that the applicant was not currently enrolled and thus would not meet cl.500.211 of the Regulations. This was because the PRISMS records showed that the applicant had had 7 Confirmations of Enrolment (CoEs), of which 6 had been cancelled and only one had been finished (on 17 December 2017). No CoE was shown as being current.

13. The Tribunal further advised the applicant in the s.359A letter that the information in the PRISMS records and the movement details, when taken together, might lead the Tribunal to a conclusion that the applicant did not intend to stay in Australia temporarily and thus would not meet cl.500.212 of the Regulations. This was because:

    (a)The movement details showed the applicant had not returned to his home country in approximately 4 years and 8 months since initial arrival in Australia which the Tribunal was concerned might call into question whether the applicant had a significant incentive to return to his home country and that he was seeking to maintain residence in Australia.

    (b)Moreover, the PRISMS records showed the applicant had only finished one CoE since 2016 with the remaining 6 CoEs having been cancelled. This, the Tribunal was concerned, might show lack of academic progress which might lead to the conclusion that the applicant had shown little incentive to complete his studies but rather his intention was to maintain residence in Australia.

14. In the s.359A letter, the Tribunal invited the applicant to provide comments on the issues (addressed in paragraphs 9–13 above) by 19 January 2021 and further advised that if the Tribunal did not receive the applicant’s comments or response within the period allowed (ie by 19 January 2021) or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

15. The applicant did not provide any comments within the prescribed period and made no application for an extension of time within which to provide comments. Consequently, no extension has been granted.

16. The Tribunal has decided to proceed to decision without taking further steps to obtain the information and comments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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.

19. As noted above, the dispositive issue before the Department was whether the applicant intended genuinely to stay in Australia temporarily. For the reasons now to be set out, the issue now in the present case is whether the applicant is enrolled in a course of study.

    Enrolment (cl.500.211)

20. 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.

21. ‘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.

22. As noted above in paragraph 4, on 9 June 2020 the Tribunal wrote to the applicants pursuant to s.359(2) of the Act seeking information about the applicant’s enrolment and entry and stay in Australia. In particular, the letter stated:

    As you applied for the visas on the basis of undertaking a course of study in Australia, it is a requirement of the visa for one of you (the main applicant) to be:

    enrolled in a registered course of study; and

    a genuine applicant for entry and stay as a student.

    Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study the main applicant is undertaking and their entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below.

23. The application went on to give more details in relation to that.

24. As noted in paragraph 6, the applicant did not supply any information in answer to the request for information.

25. Further, as noted in paragraph 12, the PRISMS records showed the applicant did not have a current CoE.

26. The Tribunal is satisfied that the applicant has been given the opportunity to comment on the information in the PRISMS records under s.359A of the Act. The Tribunal is satisfied it can proceed to a decision on the basis of the information in the PRISMS records showing the applicant is not currently enrolled.

27. The Tribunal finds there is no evidence before it that the applicant is enrolled in an approved course of study, as required for the grant of a student visa. Therefore, the Tribunal is not satisfied that, at the time of this decision, the applicant is enrolled in a course of study. Accordingly, cl.500.211(a) is not met. It thus becomes unnecessary for the Tribunal to give further consideration as to whether the applicant meets cl.500.212(a).

28. 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.

    Secondary applicant

29. The secondary applicant’s visa application is dependent on the success or otherwise of the applicant’s visa application. In particular, cl.500.311 of Schedule 2 to the Regulations requires that the secondary applicant, namely Ms Kim Bee Lai, is to be a member of the family unit of a person who satisfies, or has satisfied, the primary criteria for a student visa.

30. It follows that because the applicant has been found not to meet the criteria for the grant of a Student visa, the secondary applicant does not meet the secondary criteria for the grant of a Subclass 500 (Student) visa and the decision under review must be affirmed.

    DECISION

31. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) Subclass 500 visas.

    Robert Cumming
    Member