Art-Aim (Migration)

[2022] AATA 1022

Art-Aim (Migration) [2022] AATA 1022 (4 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Somsak Art-Aim

CASE NUMBER:  2005422

HOME AFFAIRS REFERENCE(S):          BCC2019/6687449

MEMBER:David Thompson

DATE:4 April 2022

PLACE OF DECISION:  Perth

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

Statement made on 04 April 2022 at 7:37pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – enrolment in a course of study – decision under review affirmed        

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, r 1.03; Schedule 2 cls 500.111, 500.211, 500.212

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 Home Affairs on 10 March 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 16 December 2019. 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 (Cth) (the Regulations) because he was not satisfied that the applicant intended genuinely to stay in Australia temporarily. For the reasons explained below, the issue is now whether the applicant is enrolled in a course of study as required by cl500.211(a).

4. On 24 September 2021 the Tribunal wrote to the review applicant pursuant to s 359(2) of the Act. That letter contained an invitation to provide information in writing. That invitation was made in the following words:

   As you applied for the visa on the basis of undertaking a course of study in Australia, 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.

   Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below.

5. The invitation was sent to the last address provided in connection with the review and advised that, if information was not provided in writing by 8 October 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The review applicant did not provide the information requested within the period allowed (or, indeed, at all). 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.

7. On 25 January 2022, the Tribunal accessed the review applicant’s record on the Provider Registration and International Student Management System register (PRISMS). The purpose of this search was to ascertain whether the review applicant was enrolled in a registered course of study, as required by cl 500.211(a), because there was insufficient evidence currently before the Tribunal about this. The PRISMS search showed that the review applicant did not hold a current Confirmation of Enrolment (CoE) in a registered course of study

8. On 25 January 2022 the Tribunal wrote to the review applicant pursuant to s 359A of the Act, inviting the review applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The particulars of the information were that the review applicant’s PRISMS record showed that they did not hold a current CoE, which may lead the Tribunal to conclude that the review applicant was not currently enrolled in a registered course of study and did not meet cl 500.211(a). The Tribunal’s letter went on to state that if the Tribunal were to rely on this information, it would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse the applicant the grant of a student visa. The Tribunal’s letter stated that the applicant’s response was required by 8 February 2022.

9. The review applicant did not provide any comments or response, either by that date or otherwise. The Tribunal has therefore proceeded to make its decision without taking any further steps to obtain them.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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. As was stated above, the issue in the present case was originally whether the applicant met the requirements of cl 500.212. However, in the circumstances outlined above, the issue has become that of whether the applicant meets the requirements of cl 500.211(a).

    Enrolment (cl 500.211)

12. 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.

13. ‘Course of study’ is relevantly defined in cl 500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in reg 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 (Cth), to provide the course to overseas students.

14. 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 ESOS Act. 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.

15. 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, the Tribunal accepts 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.

16. An applicant for the grant of a student visa must satisfy cl 500.211 at the time of decision. Accordingly, the Tribunal obtained an updated PRISMS search on 18 March 2022. That search contains precisely the same information as the original PRISMS search mentioned at paragraph 7 above. There is nothing in this more recent search that discloses new information, other than it confirms the applicant is not enrolled in a course of study as at the date of that second search. In other words, this updated search merely confirms the information which was put to the applicant in the Tribunal’s letter dated 25 January 2022. The applicant was invited to comment on or respond to that information, and did not do so.

17. There is no evidence before the Tribunal to suggest that the applicant’s PRISMS record is incorrect. That being the case, I find that at the time of this decision the applicant is not enrolled in a course of study and does not meet the requirements of cl 500.211. It is not, therefore, necessary to consider whether the applicant meets the requirements of cl 500.212. Even if I were satisfied that the applicant genuinely intended to stay in Australia only temporarily as a student, I could not be satisfied that he meets the requirements for a visa under Part 500.2 of Schedule 2 to the Regulations.

18. 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

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

    David Thompson
    Member