Hariyanto (Migration)

[2021] AATA 243

Hariyanto (Migration) [2021] AATA 243 (4 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bambang Hariyanto (‘First Applicant’)
Miss Fatiha Wahadiyani (‘Second Applicant’)
Master Hamish Osmen Lumban Gaol (‘Third Applicant’)
Miss Havanna Maryam Lumban Gaol (‘Fourth Applicant’)
Master Hayder Omar Lumban Gaol (‘Fifth Applicant’)

CASE NUMBER:  2012725

HOME AFFAIRS REFERENCE(S):         BCC2017/2394542

MEMBER:Dr Jason Harkess

DATE:4 February 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the Applicants Student (Temporary) (Class TU) (Subclass 500) visas

Statement made on 04 February 2021 at 9:43am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – Federal Circuit Court remittal – genuine temporary entrant – not currently enrolled in registered course – no response to tribunal’s invitation to comment – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3)
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.211(a), 500.212, 500.311

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Refusal – Application for Review

1. The Applicants are citizens of Indonesia. They seek review of decisions made by a delegate of the Minister (‘the delegate’) refusing to grant them student visas. The First Applicant is 33 years of age. The Second Applicant is 37 and is the partner of the First Applicant. The Third to Fifth Applicants are their children.

2. The Applicants applied for their student visas on 5 July 2017. The visa applications were refused by the delegate on 1 September 2017. The Applicants lodged their review application with the Tribunal on 13 September 2017.

3. If granted, a student visa permits a non-citizen to enter and remain in Australia to study full-time on a temporary basis. An applicant’s family members may also join the application so that they too are issued with visas permitting them to stay in Australia for the duration of the main applicant’s studies.

4. The specific type of visa the Applicants applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Student (Temporary) (Class TU) (Subclass 500) visa.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’).

   [1] See Migration Regulations 1994 (Cth), Sch 1, cl 1222; Sch 2, cls 500.1 to 590.612.

5. In this case there are five applicants. The First Applicant is the main applicant. He seeks a student visa so that he can reside in Australia while undertaking a course of study. For the visa to be granted, he must meet the primary criteria set out in Part 500 of Schedule 2 of the Regulations.[2]

   [2] See Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

6. The Second to Fifth Applicants seek student visas as members of the same family unit as the First Applicant. The grant of a student visa to a family member of the main applicant is contingent on both the main applicant meeting the primary criteria and the family member meeting the secondary criteria.[3] For a family member to have any prospect of a successful visa outcome, the main applicant first needs to receive a favourable outcome in relation to their application. If the main applicant’s case fails, so too must any connected family member’s application.

   [3] Migration Regulations 1994 (Cth), Sch 2, cl 500.311.

Procedural History

Delegate’s Primary Decision

1. The delegate refused the visa on the basis that the First Applicant was found not to meet the criteria contained in cl 500.212 of Schedule 2 of the Regulations (‘the genuine applicant criterion’).

2. The delegate’s reasons are set out in a decision record. A copy of that decision record was provided to the Applicants upon being notified that their visa applications had been refused. The Applicants provided a copy of the delegate’s decision record to the Tribunal when they lodged their review application.

Tribunal’s Determination of Review Application in Case Number 1721605

1. The review application was determined by the Tribunal originally on 15 January 2020 (‘the original Tribunal’) where it was assigned Case Number 1721605. The original Tribunal’s determination followed a hearing that had taken place on 19 December 2019. Like the delegate, the original Tribunal determined the review application on the basis that the genuine applicant criterion was not satisfied. The original Tribunal affirmed the delegate’s decision for this reason.

Federal Circuit Court’s Determination of Judicial Review Application

1. The Applicants subsequently applied for judicial review of the original Tribunal’s decision in Case Number 1721605 to the Federal Circuit Court of Australia (‘the FCCA’). The FCCA found that the original Tribunal had failed to engage in an active intellectual process directed at the Applicants’ claim that they met the criteria for the grant of student visas, and that it had failed to give proper, genuine and realistic consideration to the claims and evidence before it.

2. The result of the FCCA judicial review proceeding rendered the original Tribunal’s determination invalid. The case was remitted to the Tribunal for reconsideration and subsequently reconstituted.

Issues for Determination

1. The primary decision of the delegate now comes before the Tribunal to be reviewed again. The newly constituted Tribunal notes that its essential function remains largely unaffected by the fact that the review application has been considered by the original Tribunal on an earlier occasion.

2. The ultimate issues for determination by the Tribunal remain the same. In this case, those issues that arise for consideration and determination by the Tribunal are as follows:

   (a)whether the First Applicant is currently enrolled in a course of study, as required by cl 500.211 of Sch 2 of the Regulations (‘the enrolment criterion’); and

   (b)whether the First Applicant is a genuine applicant for entry and stay as a student in Australia, as required by the genuine applicant criterion.

Determination of Application without Hearing

1. The enrolment criterion requires that a student visa application be founded on evidence of the applicant being enrolled in ‘a course of study’.[4] A ‘course of study’ is defined as ‘a full-time registered course of study.’[5] A ‘registered course’ is one which is provided by an institution which has been registered under the Education Services for Overseas Students Act 2000 (Cth) (‘ESOS Act’) to provide that course to overseas students.[6]

   [4] Migration Regulations 1994 (Cth), Sch 2, cl 500.211(a). The present case is not advanced on the basis that the Applicant satisfies any of the other criteria contained in cls 500.211(b), (c) and (d).

   [5] Migration Regulations 1994 (Cth), reg 1.03.

   [6] Migration Regulations 1994 (Cth), reg 1.03.

2. 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.[7] 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.[8] 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

   [7] Education Services for Overseas Students Act 2000 (Cth), s 10.

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

3. As the newly constituted Tribunal came to prepare for reconsidering the Applicants’ case, the Tribunal conducted a check of the PRISMS database to ascertain whether the First Applicant was enrolled in a course of study to ascertain whether he was likely to meet the enrolment criterion. A search of the PRISMS database conducted on 20 January 2021 revealed that the First Applicant was not enrolled in any registered course.

4. By letter dated 20 January 2021, the Tribunal wrote to the Applicants pursuant to s 359A of the Act. That letter advised the Applicants of the following:

   (a)A PRISMS database search showed, as at 20 January 2021, that the First Applicant was not currently enrolled in any registered course of study.

   (b)The enrolment criterion is a ‘time of decision’ criterion which means that the First Applicant must be currently enrolled in a registered course of study to be eligible to be granted a student visa at the time the Tribunal makes its decision.

   (c)If the Tribunal were to rely on the PRISMS database search, showing the First Applicant is not currently enrolled, the Tribunal may form the view that the determinative issue is now whether the First Applicant meets the enrolment criterion.

5. The Applicants were invited to comment on or respond to the information and provide any response to the Tribunal in writing by 3 February 2021. They were also advised that if no comments or response was received by that time, they would lose any entitlement they might otherwise have had to a hearing.

6. The Tribunal has not received any substantive response from the Applicants relating to the issue of the First Applicant’s current enrolment status. No request for additional time was made by the Applicants or their migration agent to comment on or respond to the information concerning the First Applicant’s enrolment status.

7. The Tribunal conducted a further search of the PRISMS database on 4 February 2021 to ascertain the current enrolment status of the First Applicant. That search showed that the First Applicant’s enrolment status had not changed since 20 January 2021. The First Applicant is not currently enrolled in a registered course of study.

8. By the operation of s 359C and 360 of the Act, in circumstances where the Tribunal has invited the Applicants to give comments or a response pursuant to s 359A of the Act, and the Applicants have failed to do so within the prescribed period, the Tribunal may proceed to determine the review application without taking any further action to obtain the Applicants’ views on the information. Furthermore, by the operation of s 360(3) of the Act, the Applicants are now not entitled to appear before the Tribunal.

9. The Tribunal has decided to determine this application having regard to all the information before it on that basis.

ENROLMENT CRITERION

1. Producing evidence of a 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. Secondly, it obliges the applicant to pay for the course. Thirdly, 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 represents a present and operating commitment by the applicant to complete a course of study. It demonstrates a tangible and immediate need for a student visa.

2. An enrolment continues to be of legal significance once a student visa is issued. All student visas are subject to a condition that the visa holder remain enrolled in a registered course of study.[9] That condition operates on a continuing basis every day the visa remains valid. If a student visa is issued to an applicant who is not enrolled in a course of study, the visa will be breached as soon as it is granted.

   [9] Migration Regulations 1994 (Cth), Schedule 2, cl 500.611(1)(a); Schedule 8, Condition 8202(2)(a).

3. The Tribunal must therefore be presented with evidence that shows the First Applicant is currently enrolled in a registered course of study. Absent such evidence, a student visa cannot sensibly be granted. Indeed, consideration of whether the primary criteria are met, as contained in cl 500.212 to 500.218, is premised on the enrolment criterion in cl 500.211 being met. If cl 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.

4. The PRISMS report clearly indicates that the First Applicant is not currently enrolled in a registered course of study. While the determinative issue for the delegate was whether the First Applicant met the genuine applicant criterion, the Tribunal has concluded that the decision under review ought to be affirmed in this case because the First Applicant does not meet the enrolment criterion.

5. The Tribunal finds that the First Applicant does not meet the criteria contained in cl 500.211 because he is not currently enrolled in a registered course of study.

GENUINE APPLICANT CRITERION

1. In the circumstances, the question of whether the First Applicant meets the criteria under clause 500.211 has become determinative for the purposes of the outcome of the case now before the Tribunal. If the First Applicant does not meet the criteria under the cl 500.211, there is no administrative utility in the Tribunal proceeding to consider whether the genuine applicant criterion is met under cl 500.212.

SUMMARY

1. The First Applicant does not meet the regulatory requirements for the grant of a student visa because the Tribunal is not satisfied that he meets any of the criteria contained in cl 500.211. Because the First Applicant fails to meet the primary criteria, the Second to Fifth Applicants’ case for student visas must also fail.

DECISION

1. The Tribunal affirms the decisions not to grant the Applicants Student (Temporary) (Class TU) (Subclass 500) visas.

Dr Jason Harkess
Member