Jaganathan (Migration)

[2022] AATA 4837

Jaganathan (Migration) [2022] AATA 4837 (21 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr James Nathan Jaganathan
Ms Rani Krishnan
Mr Daniel James Nathan
Mr Edwin Nathan James Nathan
Mr Jeba Neyan James Nathan

REPRESENTATIVE:  Mr Hadi Assanteh (MARN: 0320689)

CASE NUMBER:  2203591

HOME AFFAIRS REFERENCE(S):          BCC2021/298315

MEMBER:Gabrielle Cullen

DATE:21 December 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 21 December 2022 at 5:54pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no response to tribunal’s request for information after extension of time – no current enrolment – limited response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359A, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211(a), 500.212

CASE
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 25 February 2022 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 1 March 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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. A Confirmation of Enrolment attached to the current application refers to the applicant studying a Comprehensive English course from 12 April 2021 to 8 October 2021.

4. On 25 February 2022 the delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student.

5. On 14 March 2022 the applicants lodged an appeal to the Tribunal and attached the decision of the Department.

6. On 24 August 2022 the Tribunal wrote to the applicants a s.359(2) letter as follows.

   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.

7. The Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student the Tribunal must have regard to ‘Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ and attached a copy.

8. The letter also noted the following:

   If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

9. The applicants were given until 7 September 2022 to provide the information requested. 

10. On 31 August 2022 the applicants requested 6 months to provide the requested documents. The Tribunal considered the request and granted an extension of time to 5 October 2022. The letter to the applicants noted:

    If we do not receive the information by 5 October 2022,  we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

11. On 25 September 2022 the applicant requested 2 to 3 months to provide further comment as they await the passports of their children. The Tribunal granted them until 19 October 2022 to provide the information requested. No information was provide pertaining to the request.

12. The Tribunal is of the view that it has considered the applicants’ request for extension of time for initially 6 months and then 2 to 3 months but is of the view that the time given is reasonable in the circumstances as it his claim he is in Australia to study.

13. Because there was no information provided about whether the applicant was currently enrolled in a course of study, and therefore whether he satisfied cl.500.211, the Tribunal caused a search of PRISMS, being the Provider Registration and International Student Management System register, to be undertaken. The purpose of this search was to ascertain whether the first named applicant was enrolled in a registered course.

14. 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 Education Services for Overseas Students Act 2000. 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.

15. 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.

16. The PRISMS search revealed that the applicant did not hold a current confirmation of enrolment in a registered course as at 27 October 2022, being the date of the search.

17. On 16 November 2022 the Tribunal sent the following s.359A letter to the applicants:

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that you do not hold a current Confirmation of Enrolment in a course of study.

    This information is relevant to the review because you have applied for a Student visa and it is a requirement for the grant of a Student visa that you are enrolled in a course of study at the time of decision (clause 500.211). A course of study is defined as a fulltime registered course. There are limited exceptions to this requirement which do not appear to be relevant to your review (such as where you are a Foreign Affairs, Defence or secondary exchange student).

    If we rely on this information in making our decision, we may find that you are not currently enrolled in a course of study. This would mean that you do not meet clause 500.211. The consequence of the Tribunal relying on this information is that it would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant you a Student visa.

18. The applicants were given until 30 November 2022 to comment on or respond to the information.

19. On 1 December 2022 the applicant provided the following statement via email.

    I would like to firstly thank you for the extended period of time you’ve given me to collect the additional documents. I really appreciate your consideration.

    Unfortunately, due to some miscommunication with my English course, I was unable to collect the additional documents that was asked of me. In trying to reach out to them by phone to find a solution, I was told that they will get back to me and I have heard nothing back from them. I am still trying get an appointment with the administration of the institution in the coming weeks.

    The reason I wanted to take the English course in the first place was, while trying to apply for skill migration my agent advised me that I’ll need to get an ielts test result. I have done a few ielts tests before but failed them. So as a sponsorship but do an English course instead.

    In 2007 I moved to Australia on a 457 visa. From 2007 until now I have been with my family here. My first 3 children finished their schooling here while my youngest son is still in school. They don’t know the language at Malaysia or have something to fall back on in Malaysia. So going back now would be a great struggle. There is no opportunities at all for my family if we were to go back.

    As a husband and a father of 4 kids, I would like to kindly request a favour from the department to take our case into consideration and give us options that may allow us to stay in Australia.

20. The applicant has not provided evidence of current enrolment in a course of study since the response date or as at the date of this decision. No evidence of  current enrolment has been provided for any of the other applicants. The Tribunal is of the view the applicant has been given a reasonable period to provide such evidence

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. On 24 August 2022 the Tribunal wrote to the applicants pursuant to s.359(2) of the Act, inviting either of the applicants to provide information about their enrolment in a course of study and matters pertaining to the genuine temporary entrant criteria in writing. The invitation was sent to the applicants and advised that, if the information was not provided in writing by the prescribed period or within any extended time as requested being granted being to 19 October 2022, 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. The applicants did not respond to this request for information by 19 October 2022 and did not provide any of the information requested.

23. The Tribunal is of the view the applicants did not provide the information requested in the s.359(2) letter within the prescribed period and did not request an extension of time within the prescribed period. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review 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.

24. On 16 November 2022 Tribunal wrote to the applicants a s.359A letter inviting them to comment or respond to information from the PRISMS record that indicates the applicant is not enrolled in a course of study.

25. 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 before the delegate was whether the applicant met the criterion in cl.500.212, however as raised with the applicant another matter before the Tribunal is whether he meets cl.500.211.

26. 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.

27. ‘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.

28. The Tribunal raised with the applicants the requirement of enrolment for the grant of a student visa and referred to cl. 500.211 in the recent s.359A letter.

29. Information obtained from the PRISMS record of the applicant, raised with the applicant via s.359A in the Tribunal’s letter indicates he is not currently enrolled in a course of study. There is no evidence before the Tribunal to suggest that the PRISMS record is incorrect or that any of the other applicants are enrolled in a registered course.

30. The Tribunal has considered the  response  but is of the view that the letter dated 16 November 2022 clearly outlines the issue before them, being non enrolment in a course of study and the consequence of not being enrolled. In particular the letter notes:

    If we rely on this information in making our decision, we may find that you are not currently enrolled in a course of study. This would mean that you do not meet clause 500.211. The consequence of the Tribunal relying on this information is that it would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant you a Student visa.

31. Therefore, on the evidence before it, 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.

32. 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

33. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Gabrielle Cullen
    Member