Cao (Migration)

[2022] AATA 869

Cao (Migration) [2022] AATA 869 (24 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Xiaolei Cao
Mr Zehao Su

CASE NUMBER:  2004112

HOME AFFAIRS REFERENCE(S):          BCC2019/6164664

MEMBER:Vanessa Plain

DATE:24 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 24 March 2022 at 5:05pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – no current enrolment – decision under review affirmed 

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359; 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 18 February 2020 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 21 November 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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) on the basis that the applicant was not a genuine applicant for entry and stay as a student.

4. On 22 October 2021 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act and stated as follows:

   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 Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student the Tribunal must have regard to ‘Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ and attached a copy.

6. The letter also noted the following:

   If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain 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.

7. The applicant was given until 5 November 2021 to provide the information requested.

8. The applicant did not provide the information requested by 5 November 2021.

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

10. 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.

11. 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.

12. The PRISMS search revealed that the applicant did not hold a current confirmation of enrolment in a registered course as at 1 February 2022, being the date of the search.

13. On 21 February 2022 the Tribunal sent the following s.359A letter to the applicant:

    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.

14. The applicant was given until 7 March 2022 to comment on or respond to the information.

15. On 7 March 2022 the applicant provided a response to the Tribunal via email.  The email stated:

    Here is Xiaolei Cao, I don’t have agent right now. may I reply to you via email? If it is not the correct way to explain, could you please tell me how to make it by form or go to AAT website? I am really appreciated for your assistance. For some personal issues, I met some financial difficulties right now, there is no spare money for me to ask help from agent. I am really sorry I didn’t enrol in any of Torrens University’s courses right now. for the reason like following; This semester’s enrolment time is in the beginning of January, but I was tested positive of COVID. I live alone, no friends or family live with me. I need to take care of myself and suffer from the symptoms. in addition, I was hit by other cars in December, which caused pains on my body which made situation worse. I couldn’t sleep whole night and it was hard for me to live a normal life. I was recovered at the end of January, but the enrolment was already finished. I will make application for the next semester and go back to school.

    I need to update that my son Zehao Su has been back to China, I found my husband was cheat on my dating with other girls. I decided to divorce last year. It was really long suffering and painful, especially with one child. I couldn’t divorce by make an application online, we need to go to the lawyers and courts. He didn’t make payment to Zehao, and student has no centrlink from government. I have to support my little boy all by myself. And pay for some existing debt, because I run a small restaurant, my ex-husband stolen the money from the shop to play his JDM car. When I found it, it was too late, I had no choice but pay the money he owed. However, the lock-downs leaded the close of my restaurant, we had no customers and still had rent. And Zehao’s child care is 130/day, I need to pay the full amount without any assistance. Great stress almost made me out of breath. I really couldn’t focus on my study. 

    With one year’s effort and support from my parents, also get help from a lot society in Australia, like red cross, social workers and mental blue. I felt better right now. I went to Torrens University, and checked I only have 2 semesters (6 courses) to finish this degree. And my mother took my little boy back to China which gave me more time to adjust myself. Things are better right now, and I plan to finish my degree then go back to China, i miss my boy a lot. He is my support, and i the best way in my mind is getting the degree and to find a job in my hometown. If i don’t have the degree, it is really hard to find a job right now. please take into consideration, your decision is really important to me and my family. Thanks for your time and wait for your response.

16. The applicant has not provided evidence of current enrolment in a course of study since that time or as at the date of this decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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 their enrolment in a course of study and matters pertaining to the genuine temporary entrant criteria in writing. The invitation was sent to the applicant and advised that, if the information was not provided in writing by the prescribed period, being 5 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.   

19. The Tribunal is of the view the applicant did not provide the information requested in the s.359(2) letter within the prescribed period.  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.

20. On 21 February 2022 the Tribunal wrote to the applicant a s.359A letter inviting them to comment or respond to information from the PRISMS record that indicates they are not currently enrolled in a course of study.

21. On 7 March 2022 the applicant provided a response to the Tribunal via email as referred to above.  The Tribunal has considered and takes into account the contents of the applicant’s email.  However, the fact remains, that there is no suggestion by the applicant in the email that they are presently enrolled in a course of study.

22. 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 before the delegate was whether the applicant met the criterion in cl.500.212, however the issue before the Tribunal now is whether they meet the enrolment requirements in cl.500.211.

23. 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.

24. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.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, to provide the course to overseas students.

25. The Tribunal raised with the applicant the requirement of enrolment for the grant of a student visa and referred to cl. 500.211 in the recent s.359A letter.

26. Information obtained from the PRISMS record, raised with the applicant via s.359A in the Tribunal’s letter dated 21 February 2022, indicates they are not currently enrolled in a course of study. There is no evidence before the Tribunal to suggest that the PRISMS record is incorrect. No evidence has been provided or new information that the applicant is currently enrolled in a course of study and the applicant’s response email acknowledges that they are not currently enrolled in a course of study.

27. The Tribunal is of the view that the letter dated 21 February 2022 clearly outlines the issue before them, being non enrolment in a course of study and the consequence of not being enrolled. In particular the letter notes:

    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.

28. Therefore, on the evidence before it, 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.

29. As the primary applicant has not met cl. 500.211, the claims of the secondary applicant need not be considered by the Tribunal.

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 decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Vanessa Plain
    Member