Huang (Migration)

[2024] AATA 3953

Huang (Migration) [2024] AATA 3953 (19 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tsai-Chuan Huang

CASE NUMBER:  2308812

HOME AFFAIRS REFERENCE(S):          BCC2023/2676527

MEMBER:Penelope Hunter

DATE:19 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 19 September 2024 at 12:59pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine student – genuine temporary entrant – enrolment in a registered course – 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 1 June 2023 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 4 May 2023. 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 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) because the applicant was not a genuine applicant for entry and stay as a student.

4. The Tribunal received a review application from the applicant on 19 June 2023, together with a copy of the decision record of the delegate. For the reasons 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).

5. On 17 July 2024, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting the applicant to provide the following information in writing.

   As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:

   ·enrolled in a registered course of study; and

   ·a genuine applicant for entry and stay as a student.

   Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these 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 about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below.

6. The invitation was sent to the last address provided in connection with the review and advised that, if information was not provided in writing by 31 July 2024, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

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

8. On 1 August 2024, the Tribunal accessed the applicant’s record on the Provider Registration and International Student Management System register (PRISMS). The purpose of this search was to ascertain whether the 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) in a registered course of study.

9. On 7 August 2024, the Tribunal wrote to the applicant pursuant to s 359A of the Act, inviting the applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The particulars of the information were that the applicant’s PRISMS record showed that they did not hold a current CoE, which may lead the Tribunal to conclude that the applicant was not currently enrolled in a registered course of study and did not meet cl 500.211(a). The invitation was again sent to the last address provided by the applicant with the review application and the applicant was advised that if she did not provide a response by 21 August 2024, the Tribunal may proceed to make a decision on the information before it.

10. On 30 August 2024, the applicant submitted a Student Visa Information form in which she set out that she was not enrolled. The applicant also requested that the Tribunal grant her an extension of time so that she could re-register at school and provide a CoE.

11. By letter dated 3 September 2024, the Tribunal responded and advise the applicant that any request for an extension was to have been received by 21 August 2024. The applicant was however advised that if she wished to provider further information to support the review application she should do so by no later than 17 September 2024.

12. The Tribunal has received no further response or comment from the applicant. The applicant has been placed on notice of issues relevant to the review, in the circumstances the Tribunal has proceeded to making its decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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. 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).

    Enrolment (cl 500.211)

15. 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.

16. ‘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.

17. 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.

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

19. A recent check of the applicant’s PRISMS records on 1 August 2024, discloses that the applicant does not hold a current enrolment in a course of study.

20. The applicant in her Student Visa Information form indicated that she was not as of 30 August 2024 enrolled in a registered course. In her request for further time she also confirmed she needed to re-enrol to obtain a CoE.

21. The applicant has not demonstrated that she has enrolled in a registered course. 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.

22. 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

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

    Penelope Hunter
    Member