Bang (Migration)

[2022] AATA 871

Bang (Migration) [2022] AATA 871 (22 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jihyeok Bang

REPRESENTATIVE:  Ms Jungmin Lee (MARN: 1279501)

CASE NUMBER:  2005281

HOME AFFAIRS REFERENCE(S):          BCC2019/6696437

MEMBER:Michael Biviano

DATE:22 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 22 March 2022 at 3:45 pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine temporary entry as student – no evidence of current enrolment – enrolments cancelled – decision under review affirmed 

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359, 363; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.111, 500.211, 500.212; 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 Home Affairs on 28 February 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(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the reason that he was not a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily.

4. The applicant was assisted in relation to the review.

5. On 22 October 2021 the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting the applicant to provide information about whether he was enrolled in a registered course of study and a genuine applicant for entry and stay as a student in writing (22 October letter). The invitation was sent to the last address provided in connection with the  review being the address of the representative and advised that, if the information was not provided in writing by the prescribed date, being 6 November 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 they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The 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 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 1 February 2022, the Tribunal accessed the applicant’s record on the Provider Registration and International Student Management System (PRISMS). The purpose of this search was to ascertain whether the 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 issue. The PRISMS search showed that the applicant did not hold a current Confirmation of Enrolment (COE) in a registered course of study. The search confirmed that he had been enrolled in a Certificate III in Business and a Diploma of Business and those enrolments were cancelled on 25 March 2020 for cessation of studies in the Certificate III course and non-commencement of studies in the Diploma course. He has not enrolled in any further course of study.  

8. On 21 February 2022 the Tribunal wrote to the applicant pursuant to s 359A of the Act, inviting the applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing (21 February letter). The particulars of the information were that the applicant’s PRISMS records showed that they did not hold a current COE, which may lead the Tribunal to conclude that the applicant was not currently enrolled in a registered course of study and did not meet cl 500.211.

9. The applicant did not provide their comments or response and the Tribunal has proceeded to making its decision without taking any further steps to obtain them.

10. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the 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 applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 was whether the applicant was a genuine applicant for entry and stay as a student; however, by reason of the PRISMS records the issue became whether the applicant was enrolled in a registered course of study.

    Enrolment (cl 500.211)

13. 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.

14. ‘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) (the ESOS Act), to provide the course to overseas students.

15. According to PRISMS, 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 that 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 COEs 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.

16. 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.

17. The applicant is a 33-year-old South Korean national who came to Australia and has held student visas, bridging visas and working holiday visas.

18. The decision record of the delegate of the Department of Home Affairs dated 28 February 2020, which was provided to the Tribunal by the applicant, confirms the applicant made the current application for a Student (Class TU) Subclass 500 visa on 16 December 2019 (Decision Record).  The Decision Record set out the reasons why the visa application was refused.

19. The Decision Record outlined the applicant’s visa history in Australia as follows:

    The applicant had been granted their initial Student (Class TU subclass 572) visa while onshore valid until 15 March 2018 on 24 March 2016.

    Information available in the application indicates indicate that since the applicant’s initial arrival onshore they have held either a student visa or associated bridging visa except for the periods from 30 December 2013 to 16 January 2015 and from 5 February 2015 until 10 February 2016 when they held their Working Holiday (Class TZ subclass 417) visa and Working Holiday (Extension) (Class TZ subclass 417) visa respectively.

    At the time this application was lodged, the applicant held a Student (Class TU subclass 500) visa granted on 13 April 2018 valid until 10 March 2020.

20. The Decision Record confirms that the applicant, at the time of the visa application, was proposing to undertake a Certificate IV in Business and Diploma of Business (Business Courses). 

21. The PRISMS records confirm that the applicant did not complete the Business Courses and his enrolment in:

    a.The Certificate IV in Business course was cancelled on 25 March 2020 for cessation of studies; and

    b.The Diploma of Business course was cancelled on 25 March 2020 for non-commencement of studies.

22. The Tribunal, in the 22 October letter, invited the applicant to provide information in writing about the courses of study he was undertaking and about his entry and stay in Australia as a student. The invitation stated:

    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. The information requested may be given by completing the online form and clicking ‘Submit’ on the Declaration page.

23. The applicant did not provide a response to the 22 October letter and did not provide any documentation to the Tribunal confirming that he continued to remain enrolled or was enrolled in a registered course of study.

24. As discussed above, on 1 February 2022 the Tribunal accessed the applicant’s records on PRISMS, which confirmed that the applicant did not hold a current COE and that he was previously enrolled in the Business Courses, but these enrolments were cancelled on 25 March 2021, and he had not enrolled in any further courses.

25. The Tribunal, in accordance with its obligations pursuant to s 359A of the Act, sent the 21 February letter inviting the applicant to comment and respond to the information contained in the PRISMS search. The invitation relevantly stated:

    I am writing on instruction from the Member conducting your review, in relation to the application for review made by Mr Jihyeok Bang in respect of a decision to refuse to grant a Student (Temporary) (Class TU) visa.

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·     A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that you do not hold a current Confirmation of Enrolment in a course of study.

    This information is relevant to the review because you have applied for a Student visa and it is a requirement for the grant of a Student visa that you are enrolled in a course of study at the time of decision (clause 500.211). A course of study is defined as a fulltime registered course. There are limited exceptions to this requirement which do not appear to be relevant to your review (such as where you are a Foreign Affairs, Defence or secondary exchange student).

    If we rely on this information in making our decision, we may find that you are not currently enrolled in a course of study. This would mean that you do not meet clause 500.211. The consequence of the Tribunal relying on this information is that it would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant you a Student visa.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 7 March 2022. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

    If you cannot provide your written comments or response by 7 March 2022, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us by 7 March 2022 and you must state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

    If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

26. The applicant did not respond to the invitation to comment set out in the 21 February letter.

27. The applicant has not provided to the Tribunal any COEs or any corroborating documents confirming that he is currently enrolled in the abovementioned courses or any other registered course of study.

28. The Tribunal has not received a COE or any supporting evidence confirming that the applicant is currently enrolled in a registered course of study. Based on the PRISMS records and lack of material and evidence submitted to the Tribunal by the applicant, it is not satisfied at the time of this decision that the applicant is enrolled in a course of study.

29. 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.

30. 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

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

    Michael Biviano
    Member