Foong (Migration)

[2022] AATA 1513

Foong (Migration) [2022] AATA 1513 (31 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Wing Soon Foong
Mrs Natthamon Chumyai

REPRESENTATIVE:  Mrs Wenjing Xue (MARN: 1570790)

CASE NUMBER:  2005360

HOME AFFAIRS REFERENCE(S):          BCC2019/6486276

MEMBER:Margaret Forrest

DATE:31 March 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 31 March 2022 at 3:52pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – no response to 359(2) invitation – Provider Registration and International Student Management System register (PRISMS) – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 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 28 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 5 December 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 visas 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 the delegate was not satisfied that the applicant is a genuine temporary entrant. For the reasons explained below, the issue now before the Tribunal is whether the applicant is enrolled in a course of study as required by cl.500.211(a).

4. The applicants were assisted in relation to the review.

5. On 11 October 2021 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about whether the applicant is enrolled in a registered course of study and whether the applicant is a genuine temporary entrant in writing. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by the prescribed period, being 25 October 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 review 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 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 4 February 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 21 February 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).

9. The review 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. 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. The issue in the present case is whether the applicant is enrolled in a registered course of study.

    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. 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.

    Concluding paragraphs

17. 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.

    Clause 500.311

18. Clause 500.311 in Schedule 2 of the Regulations requires as follows:

    The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:

    (a)     the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:

    (i)the primary person’s application under subregulation 2.07AF(3); or

    (ii)information provided in relation to the primary person’s application under subregulation 2.07AF(4); or

    (b)    the applicant became a member of the family unit of the primary person:

    (i)after the grant of the student visa to the primary person; and

    (ii)before the application was made.

    Conclusion on cl.500.311

19. As the applicant was found not to meet Cl 500.212, the Tribunal finds that secondary applicant Mrs Natthamon Chumyai does not satisfy Cl 500.311. As secondary applicant Mrs Natthamon Chumyai has been found not to satisfy Cl 500.311, no further assessment with regard to this applicant has been undertaken. Accordingly, in relation to the secondary applicant, Mrs Natthamon Chumyai, the decision under review must be affirmed.

20. DECISION

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

    Margaret Forrest
    Member