Yang (Migration)

[2019] AATA 2694

Yang (Migration) [2019] AATA 2694 (30 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Xiaojun Yang

CASE NUMBER:  1733146

HOME AFFAIRS REFERENCE(S):           BCC2017/3590835

MEMBER:P. Wood

DATE:30 May 2019

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 30 May 2019 at 4:35pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– applicant failed to provided requested information – not presently enrolled in a course of study –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li[2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

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 12 December 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 1 October 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 review applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. In this case the Tribunal formally wrote to the review applicant pursuant to s.359(2) of the Act inviting the review applicant to provide further information to the Tribunal, including information in relation to enrolment: cl.500.211(a).

5. The Tribunal did not receive any response to the before mentioned written invitation. That is, the review applicant has not provided the Tribunal with any further information than that which was provided to the Department.

6. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under s.359(2) of the Act. The invitation was sent to the review applicant’s nominated address, being an address provided by the review applicant in connection with this application for review.

7. As the applicant failed to respond within the prescribed period, s.359C(1) 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 them to appear.[1]

   [1] see Hasran v MIAC [2010] FCAFC 40 at [26]; Yang v MIAC [2010] FMCA 890 at [40].

8. The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the review applicant has had a fair opportunity to provide relevant information already.

9. The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to Minister for Immigration and Citizenship v Li[4] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[5] which considered analogous issues, as well as the recent decision of Kaur v Minister for Immigration and Border Protection.[6]

   [2] [2002] FCA 617

   [3] [2012] FMCA 28

   [4] [2013] HCA 18 (8 May 2013)

   [5] [2014] FCAFC 1 (4 February 2014)

   [6] [2014] FCA 915 (28 August 2014)

10. In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information.

11. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the review applicant to the Department.

12. Ultimately, a decision maker is not required to make the review applicant’s case. It is for the review 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 review applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

14. Clause 500.211 provides:

    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.

15. The Tribunal has carefully considered the delegate’s decision record dated 12 December 2017, a copy of which was provided to the Tribunal by the review applicant with the application for review.

16. Crucially however, the Tribunal does not have before it recent evidence that the review applicant is presently enrolled in a course of study as required by cl.500.211(a). It follows that the Tribunal is not satisfied that the review applicant is presently enrolled in a course of study as required by cl.500.211(a).

17. Accordingly, the decision under review must be affirmed.

    DECISION

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

    P. Wood

    
    

    Senior Member