Tju (Migration)

[2020] AATA 6099

Tju (Migration) [2020] AATA 6099 (11 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fendy Tju

CASE NUMBER:  1905807

HOME AFFAIRS REFERENCE(S):          BCC2018/4287064

MEMBER:David Thompson

DATE:11 December 2020

PLACE OF DECISION:  Perth

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

Statement made on 11 December 2020 at 12:03pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–  failed to attend hearing – genuine temporary entrant criterion not met– no current confirmation of enrolment– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 362B, 379
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212

Education Services for Overseas Students Act 2000

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 22 February 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 review applicant (applicant) applied for the visa on 20 October 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because they were not satisfied that the applicant intends genuinely to stay temporarily in Australia.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 was initially that of whether the applicant meets the requirements of cl.500.212. However, as will be discussed below, the application was decided on the basis of whether the applicant meets the requirements of cl.500.211.

6. On 23 November 2020 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments by telephone at a hearing on 11 December 2020. That invitation stated that if the applicant did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent the applicant SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

7. No response to the hearing invitation was received. The Tribunal attempted to contact the applicant using the telephone number he had provided on 3 occasions at and shortly after the time scheduled for the hearing, but the applicant did not answer. The Tribunal also attempted to contact the applicant’s authorised recipient on 2 separate occasions, without success. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the applicant about the hearing. The Tribunal’s attempts to contact the applicant are set out above. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   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. On 23 April 2020, the Tribunal sent an invitation to the applicant pursuant to s.359(2) of the Act, seeking certain information relevant to the determination of his review application. The applicant provided that information by means of completing an returning a Request for Student Visa Information form (form M17) on 5 May 2020. In that response, the applicant stated that he did not have a current Confirmation of Enrolment in a registered course of study. He was also asked to give details of all courses that he had been enrolled in whilst in Australia. He provided details of a number of courses in response to that question. In each case, he stated that he had completed the course. The dates given for each course were consistent with that statement, the most recent completion date given (for a Certificate III in Tourism) being April 2019.

11. Apart from the form M17 mentioned above, a copy of the delegate’s decision record and notice of refusal of application, and a copy of the applicant’s passport, the applicant has provided no evidence to the Tribunal. There is no more recent evidence before the Tribunal showing or suggesting that the applicant is in fact currently enrolled in any course of study. The Tribunal has examined the Departmental file in respect of the applicant’s visa application, and finds no evidence in that file indicating or suggesting that he may have enrolled in any course after the Certificate III in Tourism mentioned above.

12. The Tribunal notes that the applicant was informed of the need to provide evidence of current enrolment in a course of study in the request for information sent to him pursuant to s.359(2) on 23 April 2020. He was asked to provide that evidence again in the invitation to attend a hearing sent to him on 23 November 2020. That invitation also stated that:

    We may also assess whether you are enrolled in a registered course of study. Please note that not being enrolled in a registered course of study may be a reason, or part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the delegate.

13. For the reasons set out above, 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.

14. 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

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

    David Thompson
    Member