Kaewyod (Migration)

[2021] AATA 4934

Kaewyod (Migration) [2021] AATA 4934 (15 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chettha Kaewyod

CASE NUMBER:  1924747

HOME AFFAIRS REFERENCE(S):          BCC2019/3319350

MEMBER:Gabrielle Cullen

DATE:15 November 2021

PLACE OF DECISION:  Sydney

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

Statement made on 15 November 2021 at 11:44am

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, 359
Migration Regulations 1994, rr 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 on 19 August 2019 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 2 July 2019. 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. With the application was evidence the applicant was enrolled in a General English course from 1 July 2019 to 12 June 2020.. Also provided was evidence of health insurance, past education achievements and a statement addressing the genuine temporary entrant criteria.

4. The delegate refused to grant the visas 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). The delegate was not satisfied the applicant was a genuine applicant for entry and stay as a student.

5. On 4 September 2019 the applicants applied for review of the delegate’s decision.

6. On 18 October 2021 the Tribunal invited the applicant to attend a hearing by telephone on 11 November 2021. The letter, among other matters, requested the applicant provide a current Confirmation of Enrolment (COE) or other documents that show he is currently enrolled in a course of study as defined in cl.500.211. It noted that this is required for the grant of a student visa. The letter also indicated that the Tribunal may assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

7. 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.

8. 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.

9. 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.

10. The PRISMS search revealed that the applicant did not hold a current confirmation of enrolment in a registered course as at 29 October 2021, being the date of the search.

11. The applicant appeared before the Tribunal by telephone on 11 November 2021 to give evidence and present arguments. The applicant was assisted with an interpreter in the Thai and English languages.

12. The Tribunal raised with the applicant that a matter before it is whether he meets the enrolment criteria as required by cl.500.211 which is required for the grant of a student visa. It outlined cl.500.211. It also raised with him that another matter before it is whether he meets the requirement of cl.500.212. It outlined the section, the relevance of Direction 69 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as student.

13. At hearing the applicant indicated he was not currently enrolled. Via the process outlined in s.359AA the Tribunal raised with the applicant that that the PRISMS record indicates that he is not currently enrolled in a course of study. It noted he was enrolled in a General English course 1 July 2019 to 12 June 202 but enrolment in this course was cancelled on 16 September 2019. It raised with the applicant the consequence of relying on the information with regard to cl.500.211 and cl.500.212.

14. The applicant requested he be given time to talk to his agent. The Tribunal noted there was no agent or representative indicated by the applicant in his application to the Tribunal. It repeatedly asked for details of the name of the agent which the applicant he wanted to talk to. He did not name any agent. The applicant confirmed he had not been enrolled in a course of study and was not enrolled and when asked why he again said he would have to talk to his agent. The applicant was given until close of business on 12 November 2021 to comment or respond to the information raised.

15. The Tribunal also asked him a number of questions with regard to the genuine temporary entrant criteria including the value of the course to his future and whether there were any civil or political issues in Thailand which would act as a disincentive to return. With regard to the latter question he responded in the negative.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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 applicants another matter before the Tribunal is whether he meets cl.500.211.

18. 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.

19. ‘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.

20. The Tribunal raised with the applicant the requirement of enrolment for the grant of a student visa and referred to cl. 500.211 in writing and on a number of occasions at the hearing. The applicant advised that he was not currently enrolled in a course of study

21. The evidence from the applicant and the PRISMS record, raised with the applicant via s.359AA, is that the applicant is not currently enrolled in a course of study. The applicant was given time to comment or respond to close of business on 12 November 2021 but has not done so as at the date of this decision. The Tribunal has considered the reasons for the non-enrolment in a course of study including his need to contact his agent at the time of this decision. The Tribunal is of the view that given there are no details of an agent ever being involved and he could not name the agent at hearing and that he has been given additional time to comment or respond it is reasonable to proceed to a decision.

22. 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.

23. 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

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

    Gabrielle Cullen
    Member