Cameron (Migration)

[2022] AATA 304

Cameron (Migration) [2022] AATA 304 (2 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Siobhan Marie Cameron

CASE NUMBER:  1932787

HOME AFFAIRS REFERENCE(S):          BCC2019/4446076

MEMBER:Robert Cumming

DATE:2 February 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa.

Statement made on 02 February 2022 at 4:44pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no current enrolment – delay in hearing of review application, during which time applicant was enrolled, studied and completed previous course – consent to decision without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 360(2), (3), 363A
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.111, 500.211(a), 500.212

CASE
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 now Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on 1 November 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 5 September 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 the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant intended genuinely to stay in Australia temporarily.

4. Section 360 of the Act provides that 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. Those exceptions apply if the Tribunal decides it can make a favourable decision on the material before it, or (relevant to the facts of this case) if the applicant consents to the review without appearing before the Tribunal or if a person is invited in writing under ss.359 or 359A of the Act to give information or to comment or respond to adverse information and does not give that information or comment or respond before the time for giving it has passed. Subsection 360(3) of the Act provides that if any of the paragraphs in s.360(2) 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: Hasran v MIAC [2010] FCAFC 40.

5. In this case the applicant responded to the invitation to provide information within the prescribed period (by sending a duly completed Request for Student Visa Information form (information form) to the Tribunal which received it on 15 August 2021). In the information form the applicant responded to the question about whether she consents to the Tribunal conducting the review without her appearing before the Tribunal by answering ‘Yes, I/we consent to the Tribunal deciding the review without a hearing’. For an applicant to respond thus it is necessary for them to expressly choose this option in the online form. The Tribunal is therefore satisfied that the applicant has consented to the review without a hearing and there is no evidence before the Tribunal to suggest that this consent is other than informed. Accordingly, having regard to the applicant’s consent and the relevant legislative provisions, the Tribunal has decided to proceed to determine the review on the basis of the material provided by the applicant to the Department and to the Tribunal.

6. In addition, on 23 November 2021, 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 the reason or part of the reason for affirming the decision under review in writing. This information related to a check of the Provider Registration and International Student Management System (PRISMS) conducted by the Tribunal on 3 November 2021 which showed the applicant was not enrolled in a course of study as is required for the grant of a Student visa. A finding that an applicant was not enrolled in a course of study would mean the applicant did not meet cl 500.211 of the Regulations.  More will be said of this later in this decision.

7. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 7 December 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The applicant duly provided the comments to the s 359A invitation sent to her last address on 6 December 2021 which was within the prescribed time.  The applicant stated in her response:

   In relation to the email regarding my enrolment of a course. I recently completed the cert III in hairdressing on the 28.09.2021. It was a 24 month course and due to me completing the course I have not applied for another one as I am waiting for the outcome of my case. If I have to enroll (sic) in another course in order to have my student visa granted I am more than willing to do so.

9. More will be said of that response later in this decision.

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.

12. The dispositive issue in the present case has changed from the issue which concerned the Department.  Before the Department, the issue was whether the applicant intended genuinely to stay in Australia temporarily. The issue before the Tribunal has now become one of whether the applicant is enrolled in a course of study as is required for the grant of a Student visa.

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

15. All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). This is an online register in accordance with the requirements of the ESOS Act. Details of courses listed in CRICOS are integrated into PRISMS, a database maintained by the Australian government. 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. This CoE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of cl 500.211 of Schedule 2of the Regulations.

16. On 3 November 2021, as noted above in paragraph 6, the Tribunal caused a search to be made of the applicant’s enrolment status on the PRISMS database.  The search revealed that the applicant’s enrolment in the course Certificate III in Hairdressing being conducted in the period 30 September 2019 to 13 August 2021 had finished due to effluxion of time.

17. However, when the applicant provided her information form, she was then duly enrolled and studying in the course Certificate III in Hairdressing. According to the CoE she provided concurrently with her information form, and as confirmed by the Tribunal search on 3 November 2021 of the PRISMS database, that course was scheduled to conclude on 13 August 2021.  It appears from the applicant’s response referred to in paragraph 8 above, the applicant took a little longer to complete the course, completing it on 28 September 2021.

18. In any event, it appears the course has been duly completed by the applicant. 

19. Thus, there does not appear to be evidence which confirms a current enrolment for the applicant.

20. As noted in paragraph 6 above, the Tribunal put this very concern about enrolment to the applicant in its letter of 23 November 2021.  As noted in paragraph 8 above, the applicant confirmed she was not currently enrolled when she replied to the Tribunal on 6 December 2021. 

21. The Tribunal has sympathy for the applicant.  She has been waiting for a decision on her review application since she made that application on 18 November 2019.  For the vast majority of that time, she remained enrolled.  Yet it has taken until now, a period in excess of 2 years, for the matter to be constituted for decision.  As a result, the applicant’s enrolment has duly concluded.  She has been defeated by time, a factor over which she had no control.

22. As can be seen from her response to the s 359A invitation, she had been awaiting a decision on her review application.  The Tribunal fully understands that applicants, like the applicant in this case, wish to have certainty over their immigration status.  Much of their future right to enter and remain in Australia depends on the outcome of previous applications.  A refusal may potentially limit the applicant’s rights to apply in the future for a visa to enter and remain in Australia or the prospects of success of such a future visa application.

23. In this case, by the tenor of her reply, the applicant seems unsure of the requirement for her to be enrolled.  She notes a willingness to apply for enrolment, but there is no evidence before the Tribunal of a current enrolment.  The Tribunal notes that the s 359A letter referred to in paragraph 6 makes it abundantly clear that being currently enrolled at the time of decision on the review application is a requirement for the grant of a student visa.  The applicant is self-acting which may explain her confusion. 

24. There is no evidence before the Tribunal that the applicant lacks capacity to make decisions on her own behalf, however. The general law presumption of capacity applies.  Thus, it is well within the ability of the applicant to have read the clear contents of the letter concerning the requirement for enrolment and acted to enrol in a course of study.  There is no evidence before the Tribunal that she has done so.

25. As noted, the Tribunal can have sympathy for the applicant given the vast majority of time since making her application coincided with her continued enrolment and that the time taken to make a decision has worked to the applicant’s disadvantage.  In those circumstances, it would be hoped that any future decisions made by the Department on any future visa application by the applicant would view very sympathetically the issue of the refusal in this instance on lack of enrolment by the applicant.

26. Having considered all the foregoing matters, the Tribunal is left with no choice but to find that there is no evidence before the Tribunal that the applicant is enrolled in an approved course of study, as required for the grant of a Student visa. 

27. Therefore, the Tribunal is not satisfied that, at the time of this decision, the applicant is enrolled in a course of study.  Accordingly, cl.500.211(a) is not met.

28. 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.

29. Having regard to all those matters, the decision under review must be affirmed. 

    DECISION

30. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa.

    Robert Cumming
    Member