Hussaini (Migration)

[2020] AATA 2111

Hussaini (Migration) [2020] AATA 2111 (3 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hassan Ul Hasan Hussaini

CASE NUMBER:  1814708

HOME AFFAIRS REFERENCE(S):          BCC2018/1216206

MEMBER:D Triaca

DATE:3 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 03 March 2020 at 12:57pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – enrolment in a registered course ceased – non commencement of studies – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.03; Schedule 2 cls 500.111, 500.211, 500.212

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 30 April 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 March 2018. 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 (the Regulations) because the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate‘s decision was provided to the tribunal with the applicants review application.

4. The Tribunal formally wrote to the applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal on 6 November 2019. The invitation advised that, if the information was not provided in writing by the prescribed period, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the applicant‘s nominated address, being the address provided by the review applicants in connection with this application for review.

6. The Tribunal finds that the applicant did not provide further information as requested. In these circumstances, the applicant is not entitled to appear before the Tribunal: Section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

7. It is appropriate to highlight that a decision maker is not required to make the applicant‘s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

8. In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department as well as information that may be discerned from the delegate’s decision itself. A copy of the delegate’s decision was provided to the Tribunal with the review application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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)

11. 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.

12. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.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, to provide the course to overseas students.

13. 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.

14. 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.

15. In this case, the Tribunal cannot be satisfied that the applicant is currently enrolled in a registered course of study. The applicant lodged his application for a student visa on 14 March 2018, proposing to study a Bachelor of Business.

16. 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.  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.  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.

17. Upon enrolling an international student into a registered course of study, the course provider will enter 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 cl 500.211. Producing a valid and current CoE is the usual means by which an applicant can establish the criteria contained in cl 500.211 are met.

18. The Tribunal has reviewed the applicant’s PRISMS record, which reveals that the applicant’s enrolment in a Bachelor of Business was cancelled on 4 June 2018. The reason given was ‘non commencement of studies‘. There is no evidence to suggest that the applicant has engaged in any further study since that time.

19. For the purposes of determining whether the criteria contained in clause 500.211 are satisfied, 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.

20. 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.

21. 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

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

    D Triaca
    Member