Hiriketi Godage (Migration)

[2023] AATA 590

Hiriketi Godage (Migration) [2023] AATA 590 (20 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yasiru Kawshalya Hiriketi Godage

REPRESENTATIVE:  Mr Tanveer Singh (MARN: 1173217)

CASE NUMBER:  2300351

HOME AFFAIRS REFERENCE(S):          BCC2020/1355724

MEMBER:T. Quinn

DATE:20 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·clause 500.211(a) of Schedule 2 to the Regulations.

Statement made on 20 February 2023 at 11:42am

CATCHWORDS  
MIGRATION –Student (Temporary) (Class TU) visa – subclass   (Student) visa– applicant is currently enrolled – applicant has a COE – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, Schedule 2, cl 500.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 12 April 2020, the applicant applied for a Student visa[1] to undertake study in Australia (‘the application’).[2]

   [1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

   [2]At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

2. On 20 December 2022, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant did not satisfy the enrolment requirements in relation to student visas.[3]

   [3]See clause 500.211 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be enrolled in a course of study at the time of decision. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application

3. On 10 January 2023, the applicant applied for a review of the delegate’s decision with this Tribunal.[4]

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

4. The applicant was assisted in relation to the review.

5. Upon considering the material before me, I have determined that the matter must be remitted for reconsideration.

6. Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in my 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.

   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.[5]

   [5]Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

   Enrolment (clause 500.211)

8. Clause 500.211(a) relevantly 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] The applicant does not claim to meet any of the alternative criteria in clause 500.211 of the Regulations.

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

9. ‘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]

   [7]Regulation 1.03 of the Regulations.

10. 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).

    Significance of Enrolment Criterion

11. Producing evidence of current enrolment is a critical first step towards obtaining a student visa.  Such evidence shows that the applicant has, prior to a visa decision being made, 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.

12. 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 remains enrolled in a registered course of study.[10]  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.

    [10]Schedule 5 to the Regulations.

13. A decision maker must therefore be presented with evidence that shows the applicant is currently enrolled in a registered course of study. Absent such evidence, a student visa cannot sensibly be granted. Indeed, in any case for a student visa, consideration of whether all other primary criteria are met, as contained in clauses 500.211-500.218 of the Regulations, is premised on the enrolment criterion in clause 500.211 first being satisfied. If clause 500.211 is not met, there is no administrative utility in the decision maker proceeding to consider any further primary criteria.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The delegate refused the applicant’s application on the basis that he did not meet the enrolment requirements of clause 500.211 of Schedule 2 of the Regulations.

15. The applicant filed a new confirmations of enrolments on 2 February 2023 with the Tribunal.

    Conclusion on enrolment

16. The evidence before me is that the applicant has a COE and is now enrolled. The evidence of a current Confirmation of Enrolment establishes that the applicant meets the essential enrolment requirement under clause 500.211(a).

    FINAL CONCLUSIONS

17. Therefore, I am satisfied that at the time of my decision, the applicant is enrolled in a course of study and accordingly clause 500.211 of the Regulations is met.

18. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

19. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa: clause 500.211(a) of Schedule 2 to the Regulations.

    T. Quinn

    Member