Wijaya (Migration)

[2019] AATA 1437

Wijaya (Migration) [2019] AATA 1437 (24 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ady Wijaya

CASE NUMBER:  1722301

HOME AFFAIRS REFERENCE(S):           BCC2017/1343910

MEMBER:Mark Bishop

DATE:24 April 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 24 April 2019 at 10:46am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not entitled to appear before the Tribunal – enrolment status – applicant not enrolled in a course of study at time of decision – decision under review affirmed

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

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 Immigration and Border Protection on 1 September 2017 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 11 April 2017. 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 the applicant appeared to be using the student visa program as a means of extending his stay in Australia and did not genuinely intend to stay in Australia temporarily as a full time student.

4.    The applicant provided a copy of the decision record to the Tribunal. The decision record contained a copy of the applicant’s immigration, enrolment and education history. The decision record contained a copy of the applicant’s PRISMS record. The PRISMS record showed multiple enrolments in unrelated course of Hospitality, Business, Financial Services, Accounts, Accounting, Light Vehicle Mechanical Technology, Automotive Mechanical Diagnosis and Hospitality Management in the VET sector from 2008.

5.    On 18 February 2019 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 in relation to enrolment.  The applicant did not respond by the due date and did not request an extension of time to provide a written response.

6.    The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under section 359(2) of the Act.  That invitation stated that it is a requirement of the student visa that the applicant is enrolled in a course of study and that the applicant is a genuine applicant for entry and stay as a student and requested information which goes towards both criteria. The invitation was sent to the review applicant’s nominated address, being the address provided by the review applicant in connection with this application for review. 

7.    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).

8.    The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, the review 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.

9.    On 5 March 2019 the applicant provided written advice to the Tribunal that he consented to the Tribunal deciding the review without a hearing.

1. 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.

2. 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.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

Enrolment (cl.500.211)

1. 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.

2. ‘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.

3. The applicant provided a statement and supporting documentation to the Department and to the Tribunal. The Tribunal has reviewed all this material.

4. On 18 February 2019 the Tribunal wrote to the applicant and advised it is a requirement of the visa for you to be “enrolled in a registered course of study and a genuine applicant for entry and stay as a student”. The Tribunal asked the applicant to provide “…information, in writing about the course(s) of study you are undertaking…”

5. On 5 March 2019 the applicant advised the Tribunal in writing that he did not have a Confirmation of Enrolment (COE) in a registered course of study. He advised the Tribunal he had completed a Certificate IV in Automotive Mechanical Diagnosis in February 2018 and had not been enrolled in a registered course from that date until the present time. The applicant did not provide any detail of current or future enrolments in courses of study. The applicant advised he had not been enrolled in a registered course from March 2018 until the present time (Tf: 244-256).

6. The applicant has not provided evidence to the Tribunal that shows current enrolment in a course of study.

7. There is no evidence before the Tribunal that the applicant is enrolled in a course of study.

8. 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.

9. 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

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

Mark Bishop
Member