Javed (Migration)

[2021] AATA 909

Javed (Migration) [2021] AATA 909 (22 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Awais Javed

CASE NUMBER:  1921365

HOME AFFAIRS REFERENCE(S):          BCC2019/3020919

MEMBER:T. Quinn

DATE OF ORAL DECISION:  22 January 2021

DATE OF WRITTEN STATEMENT:         22 January 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 22 January 2021 at 11:07am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met– not currently enrolled in a registered course of study – no current confirmation of enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 338, 347, 359
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212

Education Services for Overseas Students Act 2000

.

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 (‘the Minister’) on 30 July 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 13 June 2019 (‘the application’).  At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant (‘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.

3. On 30 July 2019, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212(a) of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student because they did not intend genuinely to stay in Australia temporarily. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 2 August 2019, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. More than 17 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of his application for review. To this end, on 4 May 2020, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The applicant responded to this invitation on 4 May 2020 which was within the prescribed timeframe.

6. The applicant appeared via telephone hearing before the Tribunal on 22 January 2021 to give evidence and present arguments.

7. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

8. The Tribunal has concluded that the decision under review should be affirmed.  The Tribunal gave its decision on the review at the conclusion of the hearing held on 21 January 2021.  The following are the reasons for that decision.

   STATUTORY FRAMEWORK

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

10. While the determinative issue before the delegate was whether the applicant met the genuine temporary entrant criteria under clause 500.212 of the Regulations, it became clear during the hearing that the applicant did not meet other criteria that must be satisfied for the grant of a student visa.

    Enrolment (clause 500.211)

11. Clause 500.211 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.[1] The applicant does not claim to meet any of the alternative criteria in clause 500.211 of the Regulations.

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

12. ‘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.[2]

    [2]Regulation 1.03 of the Regulations.

13. 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.[3]  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.[4] 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.

    [3]Section 10 of the ESOS Act.

    [4]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

14. Producing evidence of 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.  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.

15. 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 remain enrolled in a registered course of study.[5]  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.

    [5]Schedule 5 to the Regulations.

16. 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 grated. 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 Tribunal proceeding to consider any further primary criteria.

    THE HEARING

17. In the introduction to hearing, the Tribunal stated that in an application for review of this type, it must consider certain things:

    a.one is whether you are enrolled in a course of study (cl500.211(a)); and

    b.the other is whether you are a genuine applicant for entry and stay as a student intending genuinely to stay in Australia temporarily (cl 500.212(a)).

18. The Tribunal then asked if the applicant had any questions to which they responded in the negative.

19. The Tribunal also confirmed that the applicant had read the s359(2) letter and associated questionnaire when answering the questions in the questionnaire.

20. The s359(2) letter stated ‘[a]s 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.’

21. The s359(2) letter also made is clear that not being enrolled in a registered course of study may be a reason, or part of the reason, for the Tribunal affirming the decision under review.

22. The questionnaire to be completed pursuant to the s359(2) letter (‘the questionnaire’) makes several requests for information relating to the enrolment condition contained in clause 500.211 of the Regulations. In the section of the questionnaire making these enquiries, the document also states “[n]ot being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.” Here, the questionnaire specifically asks the following question: ‘Does the Main Applicant have a current Confirmation of Enrolment (C oE) in a registered course of study?’ To this question, the applicant answered ‘yes’ and listed current and previous confirmations of enrolment as follows:

    a.Diploma of Business – studying now;

    b.Advanced Diploma of Leadership and Management – future enrolment.

23. The applicant has since produced evidence from his course provider that he completed the Diploma of Business in July 2020.  The Tribunal made enquiries of the applicant on 20 January 2020 as to his progress in his Advanced Diploma of Leadership and Management which was due for completion in July 2021.  In his response to that enquiry of the same date, the applicant indicated he was not currently studying.  During the hearing, the Tribunal enquired about whether the applicant was studying.  He indicated he was not studying because he did not want to waste time and money if he was not successful before the Tribunal.  The Tribunal enquired as to whether the applicant was currently enrolled, and the applicant gave evidence that when he stopped studying the education provider cancelled his enrolment and he is not currently enrolled.

24. In the section of the questionnaire requesting information in relation to all enrolments, the document specifically states that this includes: cancelled enrolments; courses successfully completed; and current or future enrolments (emphasis added), the applicant did not list any other future enrolments.

25. When the Tribunal wrote to the Applicant by letter on 5 January 2021 inviting them to the hearing scheduled for 22 January 2021, the Tribunal advised that it was necessary for the applicant to produce a COE or other documents showing that they are currently enrolled in a course of study as defined by Clause 500.211 of Schedule 2 of the Regulations. It was made clear in that letter that proof of enrolment is a requirement for the grant of a student visa. The Tribunal requested such proof be provided 7 days prior to the scheduled hearing. The Tribunal confirmed at hearing that the applicant read this correspondence. As at the time of this decision, there remains no such proof.

26. On 13 January 2021, the applicant responded to the hearing invitation and supplied his old COE’s which were created 24 May 2019 and are now out of date.  The applicant did not supply any current COE’s or other document showing he is currently enrolled. 

27. The Tribunal has considered the possibility that the applicant may have been under a misunderstanding as to how the Regulations operate in relation to the granting of student visas and may have mistakenly believed that they could be granted a visa by the Tribunal before taking steps to enrol in a registered course of study. If this mistake has in fact been made, it does not obviate the strict requirements of the Regulations. Evidence of a current enrolment must be produced first. The law is clear. Without an enrolment, there can be no student visa.

28. The Tribunal enquired about whether the applicant held a current confirmation of enrolment at the outset of the hearing and the applicant gave evidence that at the time of hearing he was not enrolled.

29. The Tribunal considered and explained that the determinative issue in the applicant’s case had changed as a current confirmation of enrolment has not been provided and the evidence before the Tribunal was that the applicant was not currently enrolled.  

30. The applicant was unable to produce evidence of a current Confirmation of Enrolment to the Tribunal at the hearing which would establish that they met the essential requirement under clause 500.211(a).

31. The Tribunal has no evidence of a current Confirmation of Enrolment which would establish that the applicant meets the essential requirement under clause 500.211(a) of the Regulations.

32. The applicant has had an adequate opportunity to obtain such evidence the importance of the enrolment criteria has been made clear to the applicant in the s359(2) letter and the hearing invitation. In the circumstances, the question of whether the applicant meets the criteria under clause 500.211 has become determinative for the purposes of the case before the Tribunal. If the applicant does not meet the criteria under clause 500.211, then there is no utility in the Tribunal proceeding to consider whether the genuine temporary entrant criteria are met under clause 500.212.

33. The applicant does not meet the regulatory requirements for the grant of a student visa because there is no evidence satisfying any of the criteria in clause 500.211 of the Regulations.

    CONCLUSIONS

34. Therefore, the Tribunal is not satisfied that at the time of its decision, the applicant was enrolled in a course of study and accordingly clause 500.211 of the Regulations is not met.

35. 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

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

    T. Quinn

    Member