Amandeep Singh (Migration)

[2021] AATA 2234

Amandeep Singh (Migration) [2021] AATA 2234 (9 July 2021)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amandeep Singh
Mr Jatinder Kaur
Mr Amitoj Singh Virk

CASE NUMBER:  1919071

DIBP REFERENCE(S):  BCC2019/2264835

MEMBER:Deputy President J.L Redfern PSM

DATE OF DECISION:  9 July 2021

DATE CORRIGENDUM

SIGNED:12 July 2021

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

In paragraph 20, “s.359C(2)” should be replaced with “s.359C(1)”, so that the decision reads as follows:

“20…However, s.360(2) of the Act provides exceptions to this requirement if the Tribunal decides it can make a favourable decision on the material before it, the applicant consents to the review without appearing or, relevant to the facts of this case, s.359C(1) of the Act applies…”

J.L Redfern PSM
Deputy President

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amandeep Singh
Ms Jatinder Kaur
Mr Amitoj Singh Virk

CASE NUMBER:  1919071

HOME AFFAIRS REFERENCE(S):          BCC2019/2264835

MEMBER:Deputy President J.L Redfern PSM

DATE:9 July 2021

PLACE OF DECISION:  Sydney

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

Statement made on 9 July 2021 at 5:20 PM

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – whether the applicants meet the criteria for enrolment and the genuine temporary entrant criterion – applicants invited to provide information under s.359(2) of the Act – loss of entitlement to a hearing – PRISMS search – notice issued under s.359A of the Act – no response received – main applicant found to not be enrolled in a course of study – decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth), ss. 65, 359, 359A, 359C, 360, 363A, 379A and 499
Migration Regulations 1994 (Cth), Sch 2 cl.500.2, cl 500.3

CASES

Bala v Minister for Immigration and Border Protection [2019] FCA 600
Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40
Singh v Minister for Immigration & Anor [2018] FCCA 3423

SECONDARY MATERIALS

Minister for Immigration and Border Protection, Direction No. 69, 18 April 2016
President’s Direction, Conducting Migration and Refugee Reviews, 1 August 2018

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 July 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. I affirm the decision under review. My reasons follow.

   BACKGROUND AND RELEVANT LAW

3. The first named applicant is a 34 year-old national from India. The second named applicant is his spouse. They have a child who was born in Australia and he is the third named applicant. The first named applicant has resided in Australia since 2009. According to the decision record of the delegate, the first named applicant arrived in Australia on a student visa and was enrolled in Certificate III, Certificate IV and a Diploma in hairdressing. It is also recorded that the first named applicant applied for two further visas, the details of which are not set out in the decision record, but it is recorded that it appeared the first named applicant had complied with the conditions of those visas. The third named applicant was born in 2018.

4. On 25 April 2019 the applicants applied for the visas. According to the application, the first named applicant enrolled in Advanced Diploma in Leadership and Management, which he stated he commenced on 18 February 2019. In a letter attached to his application, the first named applicant stated that following the completion of this course he proposed to complete  the Graduate Diploma of Management, and that these courses would prepare him for management level positions in small, medium and large organisations in all sectors. He provided Certificates of Enrolment for each of these courses. According to the application, the first named applicant had previously completed his Bachelor of Arts at a university in India and prior to this, a Diploma in Textile Processing also in India. It is also recorded that the first named applicant was an uber driver with Coles Services at the time of his application. The second named applicant also provided a statement in support. She stated that she arrived in Australia in 2014 for higher studies and completed an Advanced Masters of Business Administration (Management) from the Queensland University of Technology in 2016. She stated that she and the first named applicant went back to India for three months before returning to Australia and that complications with her pregnancies compromised the first named applicant’s studies. The second named applicant stated that she supported the recommencement of her husband’s studies as a ‘stepping stone’ for him to achieve his goal to start a successful career in management.

5. 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.

6. For the visa to be granted, the applicant is required to meet the primary criteria set out in clause 500.2 of Schedule 2 to the Migration Regulations 1994 (the Regulations). These criteria include requirements relating to enrolment (cl 500.211), access to funds and financial capacity (cl 500.214) and being a genuine applicant for entry and stay as a student (cl 500.212). All criteria must be satisfied at the time a decision is made on the application. The applicant must also satisfy health insurance and public interest criteria and, if required by the Minister, to satisfy specified English proficiency requirements.[1]

   [1] Clauses 500.215, 500.213 and 500.217 respectively of Schedule 2 to the Regulations.

7. Clause 500.211 provides that an applicant must meet one of the alternative grounds contained in the clause, including the requirement to be enrolled in a ‘course of study’ which is defined in cl. 500.111 to mean, amongst other things, study in a full-time ‘registered course'. A ‘registered course’ means 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 (reg 1.03 of the Regulations).

8. Clause 500.212 requires that the applicant be a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily[2] and intends to comply with any condition the subject to which the visa is granted.[3] There is a further requirement that the applicant meet any other relevant matter.[4] There are no other relevant matters prescribed and this is a broad provision which allows the decision-maker to have regard to other relevant factors that might indicate the applicant is not a genuine student. Departmental guidelines, which are not binding but instructive, state that the decision-maker should only refuse to grant a visa under cl 500.212(c) if the applicant satisfies all other Schedule 2 criteria, including the genuine temporary entrant criterion.

   [2] Clause 500.212(a) of Schedule 2 to the Regulations.

   [3] Clause 500.212(b) of Schedule 2 to the Regulations.

   [4] Clause 500.212(c) of Schedule 2 to the Regulations.

9. In considering whether an applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires a decision-maker, including the Tribunal, to have regard to a number of specified factors, although it is important to note that the Direction indicates it should not be used as a ‘checklist’, but rather the matters it lists are intended to guide decision makers when considering the applicant’s circumstances as a whole and reaching a finding about whether they satisfy the genuine temporary entrant criterion.[5] This was confirmed in Nguyen v MIBP [2013] FCCA 1864 and more recently in Singh v MIBP [2018] FCCA 3423 where the Court found that the previous direction, which included a similar provision as contained in Direction No. 69, is not intended to be construed as a checklist but the factors are all matters for the decision-maker ‘to think about and weigh up’.[6] The Federal Court provided further helpful guidance on this issue in Bala v MIBP [2019] FCA 600 where the Court found that, even though the Tribunal decision did not specifically refer to certain factors included in the direction, it did not follow that those factors were not considered and in the circumstances of the case:

   .. it is reasonable to infer that matters not mentioned were considered, though not sufficiently germane to the Tribunal’s decision to warrant express mention, separately or collectively.[7]

   [5] Direction No 69, Part 2 at [1].

   [6] Singh v MIBP [2018] FCCA 3423 at [17] and [18].

   [7] Bala v MIBP [2019] FCA 600 at [17]–[18].

10. Clause 500.214 provides that an applicant for a student visa must have genuine access to funds of the kind specified and, if requested, an applicant must provide evidence of financial capacity that satisfies the requirements specified in an instrument.[8]

    [8] Refer subclauses 500.214(2) and (3). The relevant instrument is Evidence of Financial Capacity for Subclass 500 (Student) Visas and Subclass 590 (Student Guardian) Visas.

11. Clause 500.3 of Schedule 2 to the Regulations sets out the secondary criteria that must be satisfied by applicants who are members of the family unit. Relevantly, clause 500.311 provides that the applicant must be a member of the family unit of the person who holds a student visa, that person having satisfied the primary criteria for that visa. In brief, if the applicant for the student visa does not meet the primary criteria, the member of the family unit of that person will fail to meet the requirements of the secondary criteria.

12. In this case, the delegate refused to grant the visa on the basis that the first named applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations because she was not satisfied the applicant was a genuine applicant for entry and stay as a student. The delegate referred to this as the ‘genuine temporary entrant criterion’. The delegate also refused the applications of the second and third named applicants because she was not satisfied that the primary applicant, being the first named applicant, met the criteria in clause 500.212 and as such found that the second and third named applicants did not satisfy clause 500.311 in Schedule 2 of the Regulations. The grounds for the refusal are set out in the delegate’s written decision records dated 3 July 2019. The delegate did not consider any other requirements for the visa.

13. On 15 July 2019, the applicants applied to the Tribunal for review of this decision and attached the decision records to their application together with the documents provided to the Department in support of the applicationt for the student visas. The review was lodged by migration agent, Prince Pahal of Aussizz Migration and Education Services, on the applicant’s behalf.

14. On 22 January 2021 the Tribunal wrote to the applicants pursuant to s.359(2) of the Act, inviting them to provide specified information in writing to satisfy the Tribunal that the first named applicant met the requirements of both cls.500.211 (enrolment) and 500.212 (genuine temporary stay and entry).

15. Even though the delegate made her decision on the grounds that the applicant did not meet the requirements of cl.500.212(a) and did not mention cl.500.211, she found that the application for the visa was valid. Enrolment is a requirement for a valid application, as outlined below, and the delegate noted each of the courses in which the first named applicant was enrolled as evidenced by the Certificates of Enrolment provided by him. While the Tribunal will generally confine its review to the issue which was the subject of the refusal,[9] this is not always the case, particularly when other relevant issues emerge between the time of the delegate’s decision and the time of the review.

    [9] President’s Direction, Conducting Migration and Refugee Reviews (1 August 2018), 8.2.

16. The Tribunal sought information about whether the first named applicant was enrolled in a course of study at the time of the review because this requirement is an essential criterion for student visas. While the other criteria are also important and ultimately must be satisfied before the visa can be granted, enrolment is fundamental to the purpose for the visa and is a requirement that must be satisfied at various stages of the visa application process. Relevantly, enrolment requirements must be satisfied for an applicant to make a valid application,[10] enrolment requirements must be satisfied at the time of decision to be granted a student visa, as provided by cl.500.211, and visa holders must maintain enrolment in a registered course as a condition of their visa.[11]

    [10] Refer item 1222(3)(c) of Schedule 1 to the Regulations and the relevant instrument, Evidence of Intended Course of Study, which provides that the applicant must provide confirmation of enrolment for each of the applicant’s intended courses of study.

    [11] Condition 8202 relevantly provides that the holder of the visa must be enrolled in a full-time course of study.

17. The invitation to provide information was sent to the applicants’ registered migration agent and advised that, if the information was not provided in writing by the prescribed period, being 5 February 2021, 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 he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

18. By email received on 8 February 2021, Mr Pahal wrote to the Tribunal and explained that he had requested the documents from the applicants. Mr Pahal did not request an extension of time, even though such request would have been out of time, and advised the Tribunal as follows:

    … The requested documents detail is provided to the student. We are waiting for the requested documents from the student and it will be provided to the department as soon as we receive it from the student.

    If you require any further information in regards to this matter, please do not hesitate to contact me.

19. The Tribunal did not receive further correspondence from Mr Pahal in relation to this invitation.

20. Under s.360 of the Act, the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments. However, s.360(2) of the Act provides exceptions to this requirement if the Tribunal decides it can make a favourable decision on the material before it, the applicant consents to the review without appearing or, relevant to the facts of this case, s.359C(2) of the Act applies. Section 359C of the Act provides that if a person is invited in writing under s.359 of the Act to give information and does not give that information before the time for giving it has passed, the Tribunal may make a decision on the review, without taking any further action to obtain the information. Subsection 360(3) of the Act provides that if any of the paragraphs in s.360(2) of this section apply the 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.[12]

    [12]Hasran v MIAC [2010] FCAFC 40.

21. For the exception to the hearing requirement to apply, the invitation must comply with the applicable statutory notification requirements. Section 379A provides that the Tribunal is required to give a document to the person receiving the document (recipient) by giving the document by hand, dispatching a document by prepaid post or transmission by fax or email to the address provided to the Tribunal by the recipient in connection with the review.

22. I am satisfied that the applicants were served with the invitation under s.359 of the Act because an electronic copy of the invitation was sent by the email on the same date of the letter and it was sent to the address of the applicants’ representative which was specified on the application for review form that was lodged with the Tribunal. The migration agent for the applicants responded, confirming he had received the invitation, but he did not respond within the prescribed period or seek an extension of time within that period. While it may have been preferable for the Tribunal to write to the applicants’ migration agent expressly bringing to his attention the fact that the applicants had lost their entitlement to a hearing, the terms of the invitation were clear and at that stage there were was no further action that could have been taken by the migration agent other than to provide the evidence as requested by the Tribunal to assist it in making a determination on whether the applicants met the relevant criteria. This was not done.

23. Having undertaken the appropriate searches of the file and the electronic case management system, I am satisfied that no information or submissions were provided by either the applicants or on their behalf by their representative within the prescribed period, namely 5 February 2021, nor was an extension of time was requested within this period. Nor is there is any notification from the applicants about a change of representative.

24. Having regard to the legislative provisions and the failure of the applicants to respond within the prescribed period, I find that the applicants are no longer entitled to a hearing. I have therefore determined to proceed under s.359C of the Act.

25. Because there was no information about whether the first named applicant was currently enrolled in a course of study, and therefore whether he satisfied cl.500.211, the Tribunal caused a search of PRISMS, being the Provider Registration and International Student Management System register, to be undertaken on 28 May 2021. The purpose of this search was to ascertain whether the first named applicant was enrolled in a registered course.

26. According to the PRISMS website, the Department of Education, Skills and Employment is responsible for the Commonwealth Register of Institutions and Courses for Overseas Students. It is recorded that PRISMS is a computer system developed by the Department in association with the Department of Home Affairs for the purpose of receiving and storing information about accepted overseas students that is given to the Secretary under the Education Services for Overseas Students Act 2000. It is further noted that PRISMS provides a secure system for providers of registered educational institutions to comply with legislative requirements by issuing confirmations of enrolments as ‘evidence of enrolment’ in a registered full-time course as required by the Department of Home Affairs and reporting changes in course enrolment, particularly where study ceases, or the duration of the study changes.

27. It is therefore apparent that PRISMS is a business record of the Department of Education, Skills and Employment and is used by the Department of Home Affairs as evidence of enrolment for the purposes of assessing the grant of student visas. While it is possible providers may not update PRISMS as required, I accept that PRISMS is a reliable record of enrolments, unless there is specific evidence to the contrary in relation to a particular case. There is no such evidence in this case.

28. The PRISMS search reveals that the applicant did not hold a current confirmation of enrolment in a registered course as at 28 May 2021, being the date of the search.

1. By letter dated 31 May 2021, the Tribunal wrote to the applicants pursuant to s.359A of the Act, advising them about the results of the PRISMS search and inviting them to comment on or respond to this information by 15 June 2021. Relevantly, the invitation stated that if the Tribunal relied on this information it may find that the first named applicant was not currently enrolled in a course of study, which would mean he did not meet cl.500.211 of Schedule 2 to the Regulations. It is further recorded in the letter that the consequence of the Tribunal relying on the information in the PRISMS search that the first named applicant was not enrolled in a course of study, would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant the applicants student visas.

2. There has been no response to this invitation, either by Mr Pahal or directly from the applicants. The Tribunal has not been notified that the agent has ceased to act or that the address for service of notices has changed.

3. In the absence of any response, I have decided to proceed to determine the review on the basis of the material provided by the applicant to the Department and to the Tribunal and the results of the PRISMS search.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. As such, the issues for determination in this case are:

   (1)Whether at the time of this decision, the first named applicant is enrolled in a course of study such that cl.500.211 is met, and

   (2)If so, whether the first named applicant is a genuine applicant for entry and stay as a student as required by cl.500.212(a) and

   (3)If so, whether the second and third named applicant meet the requirements of cl 500.311.

5. The PRISMS search dated 28 May 2021 reveals that the first named applicant enrolled in seven different courses, some on multiple occasions, and has had his enrolment cancelled in relation to all courses. The PRISMS search reveals that the first named applicant enrolled in Certificate III in Hairdressing on five occasions during 2009 (or enrolment variations) and that his enrolment was cancelled on each occasion for ‘non-commencement of studies’. The search also reveals that he enrolled in the Certificate IV, also on multiple occasions through variations with each course due to commence at different times during 2010, and that his enrolment was cancelled on each occasion, again for ‘non-commencement of studies’. There was a similar pattern for the Diploma of Hairdressing Salon Management and the Diploma of Hospitality in 2010 and 2011. Thereafter, there is no record of enrolments for an extended period until the first named applicant enrolled in the Advanced Diploma of Leadership and Management in the Graduate Diploma of Management (Learning) prior to his application. The PRISMS search reveals that the Advanced Diploma of Leadership and Management was due to start on 18 February 2019 and would have finished on 1 March 2020. This course is recorded as ‘cancelled’ and the variation reason, recorded on 29 July 2019, was ‘student notifies cessation of studies’. The Graduate Diploma of Management (Learning course) was due to commence on 3 March 2020 and to finish on 11 April 2021. It is recorded that this course was also ‘cancelled’ on 29 July 2019 because of ‘non-commencement of studies’. It therefore appears from this search that within a month of being notified of the refusal of the student visas, the first named applicant ceased his studies.

6. In summary, the PRISMS search reveals the applicant is not currently enrolled in a course and has failed to complete any course. The results of this search that the first named applicant was not enrolled were disclosed to the applicants and they were invited to comment or respond to this by letter dated 31 May 2021. They did not do so by the nominated date or at all.

7. There is no evidence before me to suggest that the PRISMS record is incorrect and that the first named applicant is currently enrolled in a course of study. Ultimately, it is for the applicants to satisfy the Tribunal that they meet the relevant criteria. The Tribunal has raised with them the critical issues in respect of which it required information and evidence. The applicants have been given two opportunities to provide this information but have not done so. Apart from filing the application for review two years ago, the applicants have not provided any further material or otherwise engaged with the review. Based on the material before me, I am therefore not satisfied that at the time of this decision, the first named applicant is enrolled in a course of study and accordingly I find that cl.500.211 is not met.

8. The first named applicant does not meet cl.500.211 and it is therefore unnecessary for me to consider whether he meets the requirements of cl.500.212 to determine this review. This is because, even if I was satisfied he is a genuine applicant for entry and stay as a student, which may be impacted by any findings about the failure to be enrolled, he cannot meet the requirements of the visa under Part 500.2 of Schedule 2 to the Regulations.

9. Because I have found that the first named applicant does not meet the primary criteria for the student visa, I am not satisfied that the second and third named applicants meet the criteria in clause 500.311 of Schedule 2 to the Regulations, even though I accept that both are members of his family unit.

10. Given the above findings, I find that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicants do 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 decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    J.L Redfern PSM
    Deputy President