Ho (Migration)

[2022] AATA 154

Ho (Migration) [2022] AATA 154 (24 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hin Yong Ho

CASE NUMBER:  2001703

HOME AFFAIRS REFERENCE(S):          BCC2019/6579945

MEMBER:Dominic Triaca

DATE:24 January 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 24 January 2022 at 11:12am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – current enrolment – enrolments cancelled – decision under review affirmed           

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2 cls 500.111, 500.211, 500.212; r 1.03

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 9 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 10 December 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 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

4. The applicant is a 37 year old citizen of Malaysia. He applied for a student visa, the subject of this application on 10 December 2019. On 9 January 2020 his application was refused.

5. On 12 August 2021 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide further information in writing. Relevantly, the tribunal’s invitation stated, ‘as you applied for a visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:

   (a)Enrolled in a registered course of study; and

   (b)A genuine applicant for entry and stay as a student.

6. Accordingly, you will need to provide sufficient information to satisfy us that you meet both visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details of the information requested is set out in the Request for Student Visa Information form which you can access by clicking the link below.’

7. The invitation was sent to the last known address provided in connection to the application and advised that, if the information was not provided in writing by 26 August 2021 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act to give evidence and present arguments.

8. The review applicant did not provide the information requested within the period allowed. In these circumstances, s.359C applies. 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 there is no entitlement to a hearing, and the Tribunal has no power to permit him or her to appear [Hasram v MIAC (2010) FCAFC 40.]

9. On 18 October 2021 the tribunal accessed the applicant’s Record on the Provider Registration & International Student Management System (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 applicant did not hold a current Confirmation of Enrolment (COE).

10. On 22 October 2021 the tribunal wrote to the applicant pursuant to s.359A and invited the applicant to provide comment on information that it considered would be part of a reason for affirming the decision under review in writing. The particulars of information were the review applicant’s PRISM Record showed that they did not hold a current COE, which may lead the tribunal to consider the review applicant was not currently enrolled in a registered course of study and did not meet the requirements of cl.500.211(a).

11. The review applicant did not respond. The tribunal has proceeded to make a decision on the material before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

    Enrolment (cl 500.211)

14. 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.

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 (Cth), to provide the course to overseas students.

16. 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. 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. 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.

17. The Tribunal 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 cos 500.212 to 500.218 is premised on the enrolment criterion in clause 500.211 first being satisfied. If cl 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.          

18. According to the PRISMS website, the Department of Education, Skill and Employment is responsible for Commonwealth Register of Institutions and Courses of 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 legal requirements by issuing confirmations as evidence of enrolment in a registered full time course as required by the Department of Home Affairs, reporting changes in course enrolment, particularly where study ceases, or the duration or the study changes.

19. 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 that providers may not update PRISMS as required, the Tribunal accepts that PRISMS is a reliable record of enrolment unless there is specific evidence to the contrary in relation to a particular case. There is no such evidence in this case.

20. The applicant’s PRISM’s Record in this case revealed the applicant’s enrolments in Advance Diploma of Business and a Diploma of Business were cancelled on 16 January 2020. There is nothing to suggest the applicant undertook any form of further study since that time.

21. Cogent evidence of a current enrolment must be presented to the tribunal before it can make a finding that the applicant is currently enrolled in a registered course of study. There is presently no such evidence before the tribunal.

22. 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.

23. 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.

    DECISION

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

    D Triaca
    Member