Kaewmueang (Migration)

[2024] AATA 1460

Kaewmueang (Migration) [2024] AATA 1460 (15 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Krichakorn Kaewmueang

CASE NUMBER:  2309107

HOME AFFAIRS REFERENCE(S):          BCC2023/3166777

MEMBER:David Thompson

DATE:15 May 2024

PLACE OF DECISION:  Perth

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

Statement made on 15 May 2024 at 7:06pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no current enrolment in registered course – no response to invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.111, 500.211(a), 500.212

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 13 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 6 June 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. 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).

4. The applicant appeared before the Tribunal on 17 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5. On 29 April 2024, the Tribunal accessed the review applicant’s record on the Provider Registration and International Student Management System register (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 the evidence then before the Tribunal on this point had become insufficient. The PRISMS search showed that the review applicant did not hold a current Confirmation of Enrolment (CoE) in a registered course of study.

6. On 29 April 2024 the Tribunal wrote to the review applicant pursuant to s 359A of the Act, inviting the review 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 review applicant’s PRISMS record showed that they did not hold a current CoE, which may lead the Tribunal to conclude that the review applicant was not currently enrolled in a registered course of study and did not meet cl 500.211(a). The Tribunal’s letter also explained that if the Tribunal was not satisfied that the applicant met that requirement, it may conclude that she was not entitled to the grant of a student visa.

7. The Tribunal’s letter informed the applicant that her comments or response should be provided by 13 May 2024, and informed her of her right to request an extension of time in which to comment or respond to that information. It also stated that if the Tribunal did not receive her comments or response to the information in question by 13 May 2024 or by any the end of any extension of that date that might be granted, the Tribunal could make its decision without taking any further action to obtain the applicant’s views on the information in question.

8. The review applicant did not seek an extension of time, and did not provide her comments or response by 13 May 2024, or indeed at all. The Tribunal has proceeded to making its decision without taking any further steps to obtain them.

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. The issue in the present case is, in the circumstances set out above, 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)

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 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.

13. 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.

14. 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.

15. The applicant’s PRISMS record indicated that, at the date it was retrieved, the applicant was not enrolled in a course of study. There was no evidence before the Tribunal suggesting otherwise. Indeed, this state of affairs was consistent with the evidence the applicant gave at hearing. 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 (which imposes a mandatory requirement for the grant of a student visa) is not met.

16. That being the case, the Tribunal is not satisfied that the applicant meets the requirements for the grant of a student visa. The delegate’s decision must, therefore, be affirmed, albeit on grounds other than those upon which it was originally made.

    DECISION

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

    David Thompson
    Member