Kam (Migration)

[2024] AATA 709

Kam (Migration) [2024] AATA 709 (16 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lai Fan Kam

REPRESENTATIVE:  Mr John William Galloway (MARN: 9254439)

CASE NUMBER:  2218835

HOME AFFAIRS REFERENCE(S):          BCC2022/2558391

MEMBER:Peter Booth

DATE:16 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 16 February 2024 at 3:25pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant was not enrolled in the course of study – PRISMS confirmed that applicant was not enrolled in the course of study – the applicant is still not enrolled in a course of study at the time of this decision – decision under review affirmed   

LEGISLATION
Migration Act 1958, ss 65, 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 on 10 December 2022 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 7 July 2022. 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 was assisted in relation to the review by their registered migration agent.

5. On 2 August 2023 the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting the applicant to provide the following information in writing.

   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.

6. The invitation was sent to the last address provided in connection with the review and advised that, if information was not provided in writing by 16 August 2023 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. By email dated 16 August 2023 the applicant sought a 14 day extension of time in which to respond. By letter dated 16 August 2023 the Tribunal informed the applicant that an extension of time was granted.

8. The applicant responded to the Tribunal’s request for information within the extended time and stated that she was not enrolled in a course of study.

9. On 13 October 2023 the Tribunal accessed the applicant’s record on the Provider Registration and International Student Management System register (PRISMS). The purpose of this search was to ascertain whether the applicant was enrolled in a registered course of study, as required by cl 500.211(a), because there was insufficient evidence currently before the Tribunal about this. The PRISMS search showed that the applicant did not hold a current Confirmation of Enrolment (CoE) in a registered course of study.

10. On 13 October 2023 the Tribunal wrote to the applicant pursuant to s 359A of the Act, inviting the 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 applicant’s PRISMS record showed that she did not hold a current CoE, which may lead the Tribunal to conclude that the applicant was not currently enrolled in a registered course of study and did not meet cl 500.211(a).

11. By email dated 27 October 2023 the applicant’s representative confirmed to the applicant was not enrolled in a course of study.

12. The matter was set down for hearing due to be conducted on 21 February 2024. In response to a query from the Tribunal by email dated 15 February 2024 the applicant’s representative confirmed that the applicant would not participate in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow her to appear.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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 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)

15. 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.

16. ‘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.

17. 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.

18. 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.

19. The applicant has previously admitted that she was not enrolled in the course of study. The PRISMS search undertaken by the Tribunal in October 2023 confirmed that she was not enrolled in the course of study. A further such search conducted on 16 February 2024 confirms that the applicant is still not enrolled in any registered course of study in Australia. Accordingly, information available to the tribunal is that the applicant is not enrolled in a registered course of study.

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.

    DECISION

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

    Peter Booth
    Member