Yoon (Migration)

[2022] AATA 1590

Yoon (Migration) [2022] AATA 1590 (12 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Dohee Yoon
Mr Sungjung Kim

CASE NUMBER:  2001853

HOME AFFAIRS REFERENCE(S):          BCC2019/6446081

MEMBER:Michael Bradford

DATE:12 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 12 May 2022 at 11:02am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – current enrolment – decision under review affirmed    

LEGISLATION

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

CASES

Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

Introduction

1. This is an application to review decisions made by a delegate of the Minister for Home Affairs who, on 13 January 2020, refused to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 3 December 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa 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. Although there are two applicants in this review the only matter which the Tribunal need decide, in the events which have occurred, is whether the primary applicant has made out a case for the grant to her of the visa. Thus, in these reasons, and without intending any disrespect to the secondary applicant, who is her husband and who applied for the visa on dependency grounds, the primary applicant will be referred to in these reasons as the applicant.

4. The delegate in this case refused to grant the visas 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 she was not a genuine temporary student in Australia.

5. The Review Application was filed on 31 January 2020 and is within time but, for the following reasons, the Tribunal has concluded that the delegate’s decisions must be affirmed but on a different ground, namely that the applicant is not currently enrolled in a registered course of study, as is required by cl 500.211 of the Regulations.

   Procedural aspects and method of review

6. The applicant has not engaged with the review process in that she did not respond to the Sec 359(2) Request within the time allowed and, consequently, has lost her right to a hearing before the Tribunal. This forfeiture occurs because of the combined operation of Secs 359C(1), 360(3) and 363A of the Act; see also Hasran v MIAC [2010] FCAFC 40.

7. This being so, the Tribunal will determine this review on the papers.

   An overview of the documentary material before the Tribunal

8. The applicant has led no documentary evidence whatever in support of her case. As noted earlier, she has not responded to the 359(2) Request, a document served directly on her on 23 August 2021, and she has not otherwise provided any evidence or information to the Tribunal either before or since that date. Reference is made in the Request to the need for her to provide by 6 September 2021 sufficient evidence to establish, among other things, that she is currently enrolled in a registered course of study and, to that end, she was invited (in bold type) to complete and send to the Tribunal the on-line Response Form.

9. Not only has the applicant not responded to the 359 Request she has given to the Tribunal no explanation for not having done so, nor has she sought (within or outside the time allowed) an extension of time in which to provide the Response Form or any other evidence in some other form.

10. On 29 November 2021, the Tribunal obtained from external sources a PRISMS record which indicated that the applicant was at that time studying a CIII in Business, a course which (according to PRISMS) had a start date of 5 October 2020 and an end date of 3 December 2021. These details are confirmed in a COE for that course which the Tribunal also obtained on that date.

11. In addition to those records, the Tribunal has been provided with a merged file from the Department which includes a copy of the Visa Application (VA) and the decisions under review.

    Approaching a determination of the issues in this case

12. As is well known, to be entitled to the grant of a Student visa of this kind the applicant must establish to the Tribunal’s satisfaction two essential things on this review; firstly, that she is currently enrolled in a registered course of study; and, secondly, that she is a genuine student who intends to remain here temporarily (the GTE criterion). Each of these things must be re-determined by the Tribunal on the evidence which it has whether that evidence was available to the delegate or not.

13. In the events which have occurred it is unnecessary for the Tribunal to determine whether the applicant meets the GTE criterion because, if she is not currently enrolled, resolution of the GTE issue cannot affect the eventual outcome of the review.

14. The requirement that an applicant for this kind of visa be enrolled in a registered course of study at the time of this decision is a mandatory requirement under the Regulations.

    An overview of the evidence before the delegate and her reasons in relation to the enrolment issue

15. At the time the VA was filed the applicant was, according to the delegate’s reasons, enrolled in a CII in Customer Engagement and the VA was filed to enable her to study that course until 21 August 2020. The delegate appears to have had access to a PRISMS record to enable her to make that finding as there is no evidence of the end date for this course in the VA and the attachment referred to in the VA was, according to the delegate’s reasons, not in fact provided.

16. According to the delegate’s reasons, the applicant was not at that stage enrolled in any other course of study.

    Evidence and findings on the review

17. In this case, given that the applicant has led no evidence in support of the review on the enrolment issue, it is unnecessary for the Tribunal to make any findings on the information in the PRISMS record and the COE for the CIII other than to note that, according to PRISMS, the applicant is not currently enrolled in any other course and has made no application to the provider to extend the COE for the CIII. Clearly, and in any event, she has not provided any evidence on the review to the effect that she done any of these things before or since the PRISMS record was obtained by the Tribunal.

18. This being so, the Tribunal simply proceeds on the basis that the applicant has led no evidence on the review to establish that she is currently enrolled in a registered course of study and the Tribunal has no other evidence before it to suggest that she is.

19. On that basis, the Tribunal finds that she does not meet the requirement in cl 500.211 of the Regulations.

20. The decisions under review must therefore be affirmed.

    DECISION

21. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Michael Bradford
    Member