Wewala Gamage (Migration)

[2019] AATA 6161

Wewala Gamage (Migration) [2019] AATA 6161 (11 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dineth Dewaka Fernando Wewala Gamage

CASE NUMBER:  1818452

HOME AFFAIRS REFERENCE(S):           BCC2018/1784186

MEMBER:Vanessa Plain

DATE:11 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 11 November 2019 at 3:18pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine student – enrolment in a registered course – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cl 500.211, 50.212; 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 6 June 2018 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 23 April 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).

4. On 16 September 2019, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide further information to the Tribunal 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 30 September 2019, 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.

5. The review applicant did not request an extension of time, nor respond at all within the prescribed period to the letter requesting further information.  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.

6. 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. 

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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. While the issue before the Department was whether the applicant was a genuine temporary entrant for the purpose of study in Australia, the issue in the present case is whether, at the time of decision, the applicant is currently enrolled in a registered course of study.

10. 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.

11. ‘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.

12. On 16 September 2019, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide further information to the Tribunal in writing.  Specifically, the applicant was informed that they needed to provide sufficient information to the Tribunal to satisfy the Tribunal that the applicant is enrolled in a registered course of study. 

13. The applicant did not respond to the letter.  Accordingly, there is no evidence before the Tribunal that the applicant is enrolled in a registered course of study at the time of this decision. 

14. 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(a) is not met.

15. 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

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

    Vanessa Plain
    Member