Bethuku (Migration) - [2024] AATA 2665

Bethuku (Migration) [2024] AATA 2665 (1 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Somchai Bethuku
CASE NUMBER:  2302251
HOME AFFAIRS REFERENCE(S):          BCC2022/3662774
MEMBER:T. Quinn
DATE:1 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 01 July 2024 at 9:58am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant did not provide the information requested within the period allowed – not currently enrolled in a registered course of study – does not have a current certificate of enrolment for any course – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212
Education Services for Overseas Students Act 2000
CASES
Hasran v MIAC [2010] FCAFC 40
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 7 September 2022, the applicant applied for a Student visa (the visa) to undertake study in Australia (‘the application’).[1]
[1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the former and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 31 January 2023, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[2]
[2]See clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be genuine applicants for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application
On 19 February 2023, the applicant applied to this Tribunal for a review of the delegate’s decision.[3]
[3] Pursuant to sections 338(2) and 347 of the Act.
In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed since making their application. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information for the purposes of determining the outcome of their application for review. To this end, on 9 April 2024, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The s359(2) letter requests that a questionnaire (‘the questionnaire’) be completed by the applicant.
The applicant did not provide the information requested in the s359(2) letter within the prescribed period or at all. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action.[4]
[4] Pursuant to section 359C(1) of the Act.
I find that the applicant did not provide further information as requested. In these circumstances, section 359C of the Act applies and pursuant to section 360(3) of the Act the applicant is not entitled to appear before the Tribunal. The effect of section 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear.[5]
[5] Hasran v MIAC [2010] FCAFC 40.
I have considered whether, in the circumstances of this case, information that the applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide relevant information already.
I have considered whether I should adjourn the review under section 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, I have had regard to decisions where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.[6] I have also had regard to other case law relevant in these situations.[7]
[6]See Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2001] FMCA 28.
[7]See Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (4 February 2014) which considered analogous issues, as well as the decision of Kaur v Minister for Immigration and Border Protection [2014] FCA 915 (28 August 2014).
I consider that the applicant has had a fair opportunity to provide relevant information and elect not to exercise my discretion to adjourn the review any further to allow the applicant more time. [8] In these circumstances, I make my decision having regard to the information I have before me, including the information previously provided by the applicant to the Department and the Tribunal but without taking further steps to obtain the additional information sought by this Tribunal under section 359(2) of the Act.
[8]under section 363(1)(b) of the Act.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. A decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
For the following reasons, I have concluded that the decision under review ought to be affirmed in this case. In reaching its decision, I have had regard to:
a.all written material filed by or on behalf of the applicant; and
b.other relevant documents on the Tribunal and Department files.
Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in my reasons as set out below. The reasons incorporate reference only to that information that I have found to be fundamental or materially significant to the determination of the issues in the case.[9]
[9]In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].
STATUTORY FRAMEWORK
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.[10]
[10]Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.
While the determinative issue before the delegate was whether the applicant met the genuine temporary entrant criteria under clause 500.212 of the Regulations, the material and evidence before me indicate that he is not currently enrolled in a registered course of study.
Enrolment (clause 500.211)
Clause 500.211 relevantly requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.[11] The applicant does not claim to meet any of the alternative criteria in clause 500.211 of the Regulations.
[11]Clause 500.211(a) of Schedule 2 to the Regulations.
‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[12]
[12]Regulation 1.03 of the Regulations.
All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[13] Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[14] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.
[13]Section 10 of the ESOS Act.
[14]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).
Significance of Enrolment Criterion
Producing evidence of current enrolment is a critical first step towards obtaining a student visa. Such evidence shows that the applicant has, prior to the Tribunal making its decision, entered into a legally binding contract with a registered course provider. That contract gives rise to several significant obligations. First, it obliges the course provider to provide the applicant with a pre-determined course of education or training over a specified period. Second, it obliges the applicant to pay for the course. Third, it obliges the applicant to complete the course requirements to receive a testament from the course provider as to what the applicant has achieved by way of formal qualification. An enrolment therefore represents a present and operating commitment by the applicant to complete a course of study. It is persuasive evidence of a tangible and immediate need for a student visa.
An enrolment continues to be of legal significance once a student visa is issued. All student visas are subject to a condition that the visa holder remains enrolled in a registered course of study.[15] That condition operates on a continuing basis every day the visa remains valid. If a student visa is issued to an applicant who is not enrolled in a course of study, the visa will be breached as soon as it is granted.
[15]Schedule 5 to the Regulations.
The Tribunal must therefore be presented with evidence that shows the applicant is currently enrolled in a registered course of study. Absent such evidence, a student visa cannot sensibly be grated. Indeed, in any case for a student visa, consideration of whether all other primary criteria are met, as contained in clauses 500.211-500.218 of the Regulations, is premised on the enrolment criterion in clause 500.211 first being satisfied. If clause 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant did not complete the questionnaire requested to be completed in the s359(2) letter. This is puzzling.
The Tribunal undertook a PRISMS search on 22 May 2024, which indicated that the applicant was not enrolled.
On 24 May 2024, the Tribunal wrote to the applicant, pursuant to section 359A of the Act, explaining the contents of the PRISMS search, its relevance to his case and indicating that the question for determination before the Tribunal has changed. That letter stated that the information in the PRISMS search could be relied upon as the reason or part of the reason for the Tribunal affirming the decision in his case. The Tribunal invited the applicant to comment or respond to this information by 7 June 2024. To date, the Tribunal has not received any response to this correspondence.
The Tribunal undertook a PRISMS search on 28 June 2024 which is identical to the search of 22 May 2024.
There is no current confirmation of enrolment for any course(s) presently before me.
The s359(2) letter made several enquiries about enrolment in a registered course of study and current confirmation of enrolment and, importantly, stated ‘[a]s 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.’
The s359(2) letter also requires a questionnaire to be completed (‘the questionnaire’). The questionnaire makes several requests for information relating to the enrolment condition contained in clause 500.211 of the Regulations. In the section of the questionnaire making these enquiries, the document also states “[n]ot being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.”
The applicant has not responded to the s359(2) letter or completed the associated questionnaire, or in fact, made any meaningful submissions regarding their student visa since making their application for review in February 2023.
Not Appropriate to Postpose Determination
I have considered whether postponing the determination of the present application for review is appropriate and whether I ought to write to the applicant, again pursuant to section 359(2) of the Act, to request information. Such a request would be specifically designed to invite the applicant to produce satisfactory evidence of a current enrolment given that they have produced none to date. After considering this possible course, I have decided against it. I consider it would not be appropriate to do so for a variety of reasons as set out below.
Firstly, I consider that the applicant has had sufficient time and notice to arrange and produce clear evidence of a current enrolment for the purposes of their application before me. The applicant has not provided such evidence when they could have done so.
Secondly, while the Tribunal may have a general duty to inquire, its role is not to advise and advocate for a particular outcome. If I were to write to the applicant, specifically requesting that he provide further evidence of a current enrolment, implicit in that request would be advice that the applicant’s case as it stands is deficient. It would also suggest that the deficiency is capable of being remedied if the applicant were to take certain affirmative action. In effect, I would be assisting the applicant to bolster their case to increase their chances of obtaining a favourable outcome. That is essentially the role of an advocate. It is not a proper or appropriate function for a Tribunal Member.
Thirdly, writing to the applicant again would frustrate the purposes of the Act. Division 5 of Part 5 of the Act (section 375A to section 367) was intended by Parliament to constitute an exhaustive statement of the principles of natural justice in relation to the matters it deals with. The Tribunal’s original s359(2) letter was designed to elicit evidence of enrolment if any such evidence existed. The applicant did not respond and has not met the requirements of clause 500.211 of the Regulations. In doing this, the applicant also caused the Act to operate to preclude them from any further hearing. The scheme of this part of the Act is designed to balance the interests of applicants in being able to make their case to the Tribunal as against the public interest in having the Tribunal determine matters that come before it expeditiously and without undue delay. The Tribunal has already afforded the applicant an opportunity to produce satisfactory evidence of a current enrolment pursuant to sections 359(2) and 359A of the Act. To provide the applicant with another such opportunity because what they produced was unsatisfactory cannot be justified. I must now move to make a determination based on the information before me.
Conclusion on enrolment
The evidence before me is that the applicant does not have a COE. I consider that the determinative issue in the applicant’s case has changed as a current confirmation of enrolment has not been provided.
I have no evidence of a current Confirmation of Enrolment which would establish that the applicant meets the essential requirement under clause 500.211(a). The applicant has had an adequate opportunity to obtain such evidence. In the circumstances, the question of whether the applicant meets the criteria under clause 500.211 has become determinative for the purposes of the case before me. If the applicant does not meet the criteria under clause 500.211, then there is no utility in proceeding to consider whether the genuine temporary entrant criteria are met under clause 500.212.
The applicant does not meet the regulatory requirements for the grant of a student visa because there is no evidence satisfying any of the criteria in clause 500.211 of the Regulations.
Given the above findings, I find 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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
T. Quinn
Member