WENG (Migration)

[2020] AATA 2823

WENG (Migration) [2020] AATA 2823 (25 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms. OULAN WENG

CASE NUMBER:  1909015

HOME AFFAIRS REFERENCE(S):          BCC2019/378477

MEMBER:P. Adami

DATE:25 May 2020

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 25 May 2020 at 12:05pm

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

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363, 499
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 22 March 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 7 February 2019. 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), because the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia as a full time student.

4. On 23 April 2020, the Tribunal formally wrote to the review applicant pursuant to section 359(2) of the Act, inviting the applicant to provide further information to the Tribunal, including information as to her enrolment and being a genuine applicant for entry and stay 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. The invitation was sent to the review applicant’s nominated email address, being the email address provided by the primary review applicant in connection with her 12 April 2019 application for review.

6. 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).

7. The Tribunal has not received a response to the written invitation to provide information from the applicant 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 a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

8. 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.

9. 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.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study:

    500.211          One 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.

13. ‘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. The applicant does not claim to meet any of the alternative criteria in cl.500.211.

14. The Tribunal observes that when the applicant applied for the student visa to the Department she confirmed that she was then, a current holder of a Confirmation of Enrolment (COE). The delegate in their 22 March 2019 Decision Record states,

    You lodged your student visa application on 7 February 2019 and provided Confirmation of Enrolments (COEs) to undertake the following course of studies in the ELICOS Sector and the Vocational Education and Training (VET) Sector in Australa [sic]:
    A4C45D82 General English (Elementary to Upper Intermediate)
    A4C46276 General English (Elementary to Upper Intermediate)
    A4C46357 General English (Elementary to Upper Intermediate)
    A4C46684 General English (Elementary to Upper Intermediate)
    A4C44F91 Diploma of Leadership and Management

    The Tribunal has no basis not to accept the delegate’s findings in this regard as accurate.

15. The Tribunal notes the delegate’s decision is now 14 months old, and the reference to the proposed study enrolment has, without more, lost its timeliness. The Tribunal does not consider this information alone founds a reasonable conclusion that the applicant is now enrolled in a course of study.

16. The applicant may have completed some or all of the proposed General English courses. Alternatively, she may not have completed some or all of the General English courses. The applicant may have successfully completed the General English courses and she may have progressed to the Diploma of Leadership and Management, or she might have progressed to the Diploma. The applicant may be enrolled as she proposed at the time of her application for a Student Visa or she may be enrolled in another course, or she may not be enrolled in anything at all. In the absence of any updated information that reasonably could have been provided by the applicant to the Tribunal in response to the Tribunal’s s359(2) request, or at any other time after filing her April 2019 application for review, there are many possible scenarios that may be reasonably contemplated.

17. The Tribunal has not concluded its decision on the basis of the above speculation for the purposes of determining whether the criteria contained in cl.500.211 are satisfied. The Tribunal considers that recent and cogent evidence of a current enrolment must be presented to the Tribunal before it can make a finding that the applicant is currently enrolled in a registered course of study. For example, the applicant might have filed an Academic Transcript or Statement of Results issued to her for her then proposed and currently enrolled studies, or she might have filed a letter from her current education provider confirming she is currently enrolled.

18. The Tribunal considers that presently there is no recent and cogent evidence before it to be satisfied that the applicant is now enrolled in a course of study as required by cl.500.211. As such, the Tribunal cannot be satisfied that the criteria for the grant of a Subclass 500 (Student) visa are met. The applicant does not claim to meet the criteria for a Subclass 500 (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.

    P. Adami
    Member