Tang (Migration)

[2020] AATA 6135

Tang (Migration) [2020] AATA 6135 (21 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Minfu Tang
Ms Shuang Dai

CASE NUMBER:  1911671

HOME AFFAIRS REFERENCE(S):          BCC2018/6175053

MEMBER:Peter Booth

DATE:21 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 21 May 2020 at 3:09pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – current enrolment – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2 cls 500.111, 500.211, 500.212; r 1.03

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 23 April 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 15 January 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 visas 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. The applicants were assisted in relation to the review by their registered migration agent.

5. On 20 April 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about the review application in writing. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by the prescribed period, being 4 May 2020, 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.

6. The review applicant did not provide the information within the prescribed period and no extension of time was requested within the relevant time. A request for an extension was made on 6 May 2020. The applicant was informed that the request was unsuccessful because it was made out of time. The applicant provided material and information on 12 May 2020. 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.The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 renrolled in a registered course of study.

   Enrolment (cl.500.211)

9. 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.

10. ‘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.

11. In a response to a request to provide information to the Tribunal pursuant to s.359(2) of the Act, the applicant asserted that he was currently enrolled in a registered course of study. In a statutory declaration dated 12 May 2020, the applicant stated that he wanted to explain “the reasons for choosing the translation course at the National Institute of Education and Technology, Tasmania, Australia”. However, notwithstanding those assertions, the applicant has not provided any documentary corroboration of being currently enrolled in a registered course of study. This is a critical fact of which the Tribunal must be satisfied at the time of determining the application for review. 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.

12. 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.

13. As the application by the primary applicant has been unsuccessful, it follows that the application of the secondary applicant must fail also.

    DECISION

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

    Peter Booth
    Member