Gill (Migration)

[2023] AATA 3702

Gill (Migration) [2023] AATA 3702 (1 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Manpreet Kaur Gill

CASE NUMBER:  2307577

HOME AFFAIRS REFERENCE(S):          BCC2021/1296269

MEMBER:T. Quinn

DATE:1 November 2023

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 November 2023 at 1:57pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – member of the family unit – current enrolment – study rights – decision under review affirmed  

LEGISLATION

Education Services for Overseas Students Act 2000, s 10
Migration Act 1958, ss 65, 338, 347
Migration Regulations 1994, Schedule 2 cls 500.211, 500.311; r 1.03

CASES

Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 23 June 2021, the applicant applied for a Student visa (the visa) as a secondary applicant and member of the family unit of her spouse (‘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’s spouse was the primary applicant and neither the applicant nor her partner claimed to meet the criteria for a Subclass 590 (Student Guardian) visa.

2. On 10 May 2023, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the applicant’s application on the basis that she was not a member of a family unit of a person who holds a student visa (as her spouse’s visa application was also refused).[2]

   [2]See clauses 500.311 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

3. On 30 May 2023, the applicant sought a review of the delegate’s decision with this Tribunal.[3]  

   [3] Pursuant to sections 338(2) and 347 of the Act.

4. The applicant appeared before the Tribunal via telephone hearing on 26 October 2023 to give evidence and present arguments. 

5. It is for the applicant to demonstrate that the requirements of the Act and Regulations have been met. The 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.

6. The decision is affirmed.  In coming to my conclusions in this case, I have considered all of the information before me, including:

   a.the oral evidence of the applicant given at the hearing;

   b.all written material filed by or on behalf of the applicant; and

   c.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 the 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.[4]

   [4]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

7. 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. 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 prior to 6 October 2023 was whether the applicant satisfies the secondary criteria.

   Clause 500.311: ‘member of the family unit of a person who holds a student visa’

8. Clause 500.311 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.

9. Clause 500.311 relevantly requires that, at the time of decision, the applicant be a family member of the family unit of a person who holds a student visa and therefore the applicant’s application must be founded on evidence that she was and remains a member of the primary person’s family and that the primary person holds a student visa.[5] 

   [5]Clause 500.311 of Schedule 2 to the Regulations.

   Significance of Primary Visa Holder Criterion

10. Producing evidence that an applicant is a member of the family unit of a primary person who currently holds a student visa is a critical first step towards obtaining a dependent student visa. The Tribunal must therefore be presented with evidence that shows the primary person holds a student visa. Absent such evidence, a dependent student visa cannot sensibly be grated. Indeed, in any case for a dependent student visa, consideration of whether all other primary criteria are met, as contained in clauses 500.311-500.318 of the Regulations, is premised on the primary person holding a student visa (a criterion in clause 500.311 which must first be satisfied before other criterion are considered). If this criterion is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.

    Enrolment Criterion – 500.211

11. On 6 October 2023, the applicant filed submissions that the applicant would like the chance to apply for a student visa as the primary applicant.  It is possible for secondary visa applicants to have their application for review remitted on the basis of evidence of enrolment.

12. Clause 500.211 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.[6]  ‘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.[7]

    [6]Clause 500.211(a) of Schedule 2 to the Regulations.

    [7]Regulation 1.03 of the Regulations.

13. 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.[8]  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.[9] 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.

    [8]Section 10 of the ESOS Act.

    [9]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).

14. 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.

    THE HEARING

15. At hearing, the applicant conceded her husband does not currently hold a student visa. 

16. At hearing, ,the applicant reiterated earlier written submissions that she would like to be the primary visa applicant for a student visa.  I asked whether she was studying at the moment and she said she was not.  I asked if she was enrolled in any courses and she said she was not.

17. I explained to the applicant that in order for me to consider her submission to be a primary visa applicant, she must be enrolled in a course of study at the time of my decision.  The applicant submitted that she did not have study rights on her bridging visa.  I took her through her bridging visa grant which does not have any conditions. 

18. The applicant sought extra time to secure a confirmation of enrolment.  I gave the applicant until the end of the day of hearing to file a confirmation of enrolment.

19. Shortly after her hearing, the applicant sought ‘one or two days time frame so that I can arrange enrolment letter’.  The Tribunal wrote to the applicant on 26 October 2023 as follows:

    Please be advised the presiding member has decided to give you until 5pm tomorrow to file a confirmation of enrolment after which time a decision will be made without further notice.

20. On 27 October 2023, the applicant filed an enrolment saying:

    Today I have got entrolled in certificate 3 in individual support for ageing amd disability. They said they will send me an orientation and class time details and breifed enrolment letter in two business days . So i am attaching the email i got from them ., they will send an other email for class time , i will send it to you (sic)

21. Attached to this email was a screen shot of an email from ‘InterCare’ to the applicant ‘Today at 2.34pm’ stating ‘congratulations! Your enrolment is complete’ and ‘This email is to confirm that both your Enrolment Form and PTR/LLN assessment have now been approved and proceed by the InterCare Enrolment Team’.  However, there was no confirmation of enrolment filed or attached and the applicant has not filed anything further since her email of 27 October 2023.

22. On a good faith basis, the Tribunal has waited a further 2.5 business days in case the applicant filed a confirmation of enrolment.  She has not.  In this regard, I note the applicant’s evidence in writing and at hearing that she was previously the holder of a student visa, as primary applicant, in 2016 and went on to hold a temporary graduate visa.  Although she is not currently represented, I considered at hearing she understood what it meant to be enrolled in a course of study and what a ‘confirmation of enrolment’ is.

23. The evidence before me is that the applicant is not the member of the family unit of a person who holds a student visa as her spouse does not hold a student visa. 

24. The applicant has not filed a confirmation of enrolment and I am not satisfied that she is currently enrolled in a course of study. Therefore, she also does not meet the enrolment criterion under clause 500.211 of the Regulations as a primary visa applicant and cannot convert this application to an application for a student visa as the primary applicant.

25. The applicant was unable to produce evidence that she is a member of the family unit of a person who holds a student visa to the Tribunal or evidence of a confirmation of enrolment which would establish that she meets the essential requirement under clause 500.311 or 500.211 respectively.

26. In the circumstances, the applicant does not meet the regulatory requirements for the grant of a secondary/dependent student visa because there is no evidence satisfying the criteria of ‘a member of the family unit of a person who holds a student visa’ as set out in clause 500.311 of the Regulations.

27. The applicant also does not meet the requirements of clause 500.211 of the Regulations.

    Other Matters

28. The Tribunal undertook PRISMS searches on 24 October 2023 and 1 November 2023.  I have not placed any weight against the applicant in relation to these searches.

    CONCLUSIONS

29. Given the above findings, the Tribunal is not satisfied that the applicant meets the requirements of clause 500.211 or 500.311 of Schedule 2 to the Regulations. 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

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

    T. Quinn

    Member