Haider (Migration)

[2022] AATA 1512

Haider (Migration) [2022] AATA 1512 (28 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shuja Haider

CASE NUMBER:  2001932

HOME AFFAIRS REFERENCE(S):          BCC2019/4898529

MEMBER:Michael Bradford

DATE:28 March 2022

PLACE OF DECISION:  Sydney

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

Statement made on 28 March 2022 at 11:23am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – no response to 359(2) invitation – 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

Introduction

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 January 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 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 that the applicant did not satisfy the requirements of cl 200.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because he was not a genuine applicant for entry and stay as a student.

4. For the reasons to be 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) of the Regulations.

   Procedural aspects

5. On 12 August 2021 the Tribunal wrote to the applicant pursuant to s 359(2) of the Act inviting him to provide information in writing on, among other requirements, his current enrolment in a registered course of study. The letter stated that he would need to provide sufficient information to satisfy the Tribunal that he met this requirement, that specific details about the requested information could be found in the Student Visa Information Form which he could access online and that, if he did not provide the requested information by 26 August 2021, the Tribunal could make a decision on the review without taking further steps to obtain the information and, in that event, he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present his case.

6. The applicant did not provide the information requested within the period allowed and, in these circumstances, s 359C of the Act applies and, pursuant to s 360(3), he is not entitled to appear before the Tribunal and, by virtue of s 363A, if he has no entitlement to a hearing, the Tribunal has no power to permit him to appear: see Hasran v MIAC [2010] FCAFC 40.

7. On 12 October 2021 the Tribunal accessed a record complied by the Provider Registration and International Student Management System (PRISMS) in circumstances to be recounted shortly which indicated that the applicant did not hold a current Confirmation of Enrolment (COE) in a course of study.

8. On 22 October 2021 the Tribunal wrote to the applicant pursuant to s 359A of the Act inviting him to comment on that information. The letter explained to him why the information was relevant to the review, that if the Tribunal relied on the information it could find that he was not currently enrolled in a course of study and that any such finding might be the reason or part of the reason for the Tribunal to affirm the delegate’s decision to refuse to grant him a Student visa. He was given until 5 November 2021 to provide the requested comments or otherwise respond to the information.

9. On 5 November 2021 the applicant sent an email to the Tribunal in which he stated that he had successfully completed a Master of Business Administration (MBA) at the Universal Business School Sydney (UBSS), and he provided a Statement of Completion and an Academic Transcript relating to that course which confirmed that he had in fact finished it on 21 August 2020.

10. His email goes on to state that, although he had since returned to his home country of Pakistan for family reasons, he wanted the Tribunal to grant him “the visa” because he had lived in Australia for 6 years and it was like home to him. He also says in this email that he returned to Pakistan without first obtaining a Bridging visa B which would have enabled him to return to Australia.

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

    The Tribunal’s approach to the issue of enrolment in this case 

12. The criteria for the grant of a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. In this case the primary criteria in cl 500.211 to cl 500.218 must be satisfied by the applicant.

13. The issue in the present case is whether the applicant is enrolled in a full-time registered course, and therefore a course of study, as required by cl 500.211(a).

14. Clause 500.211 relevantly requires that at the time of this decision the applicant be enrolled in a course of study: cl 500.211(a). He does not claim to meet any of the alternative criteria in cl 500.211.

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

16. 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.

17. 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.

18. While it is possible providers may not update PRISMS as required, the Tribunal accepts that PRISMS is generally a reliable record of enrolments unless there is specific evidence to the contrary in relation to a particular case.

19. Although there is evidence from the applicant in this case to contradict the relevant information in the PRISMS record, that evidence does not satisfy the Tribunal that he is currently enrolled in a registered course of study at the time of this decision and, indeed, the evidence which he has led merely serves to confirm that he is not so enrolled.

    Evidence and findings on the review

20. Among the other documents in the Tribunal file is a copy of the applicant’s COE relating to the MBA at UBSS. According to this document this course, which has a CRICOS code of 084520C, had a start date of 13 May 2019 and an end date of 23 April 2021. There is also an Academic Transcript of his studies in this course which confirms that he successfully completed the last 3 units in the course on 21 August 2020 having obtained some exemptions along the way apparently on the strength of his studies in an earlier MBA at the Holmes Institute, a course which he accepts in his email he did not complete.

21. PRISMS indicates that his enrolment in an earlier MBA at another provider, presumably Holmes, was cancelled after two deferments had been granted.

22. The PRISMS record also states that the applicant’s enrolment in the MBA at UBSS was cancelled on 30 September 2020 when he notified UBSS that he had ceased studies in that course but, as noted earlier, the documentary evidence from UBSS which he has subsequently provided clearly establishes that he did in fact complete this course on 21 August 2020.

23. Although the Tribunal in this case prefers that evidence to the information in the PRISMS record regarding the cancellation of his enrolment in the MBA at UBSS it can make no difference to the outcome of the enrolment issue because, on any view of the evidence, the applicant has not been enrolled in any other course of study since he completed that course and, indeed, he says in his 5 November 2021 email that he has returned to Pakistan without first obtaining a Bridging visa B which would have enabled him to return to Australia.

24. As noted earlier in his email the applicant asks the Tribunal to grant him “the visa”. This request can only in context be a reference to the Student visa which he had sought in his initial Visa Application filed on 30 September 2019 and, in any event, the Review Application which he filed in on 3 February 2020 seeks only a review of the decision made on 16 January 2020 to refuse to grant to him that visa.

25. The 5 November 2021 email is not interpreted to be a request to review any other decision and, even if it could be so interpreted, there is no evidence before the Tribunal to the effect that, prior to the applicant’s departure for Pakistan, he had applied to the Department for the grant of a Bridging B visa and that such a visa had been refused.

26. Therefore, the Tribunal is satisfied that the only reviewable decision in this case is the decision of the delegate to refuse to grant the applicant a Student visa.

27. The Tribunal is also satisfied that at the time of this decision the applicant is not enrolled in a course of study and that the requirement in cl 500.211 of the Regulations is not met in this case.

28. The decision under review must accordingly be affirmed.

    DECISION

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

    Michael Bradford
    Member