YUAN (Migration)

[2019] AATA 3072

YUAN (Migration) [2019] AATA 3072 (15 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr XINCHAO YUAN

CASE NUMBER:  1727421

HOME AFFAIRS REFERENCE(S):          BCC2017/3609327

MEMBER:Peter Booth

DATE:15 May 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 15 May 2019 at 11:32am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – did not satisfy the requirement – whether the applicant is a genuine temporary entrant – not satisfied the applicant is enrolled in a course of study – no evidence before the Tribunal  – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2 500.111, 500.211-500.218, 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 Immigration and Border Protection on 25 October 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 3 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 applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because whether the applicant is a genuine temporary entrant.

4. On 26 February 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about the review application, in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the prescribed period, being 12 March 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 provide the information within the prescribed period and no extension of time was requested. 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. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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. The issue in the present case is whether the applicant is currently enrolled in a registered course of study.

7. 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.

8. ‘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.

9. The Department file discloses that the applicant was enrolled in an Advanced Diploma of Leadership and Management due to be completed on 20 April 2019.  However there is no evidence before the Tribunal that the applicant is currently enrolled in a registered course of study. 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.

10. 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

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

    Peter Booth
    Member