Lakhanpal (Migration)

[2023] AATA 3053

Lakhanpal (Migration) [2023] AATA 3053 (24 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Akshay Lakhanpal

CASE NUMBER:  2211368

HOME AFFAIRS REFERENCE(S):          BCC2020/1355644

MEMBER:Gabrielle Cullen

DATE:24 August 2023

PLACE OF DECISION:  Sydney

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

Statement made on 24 August 2023 at 11:47am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant did not meet PIC 4005 – had not undertaken the required health examinations – applicant did not hold a current Confirmation of Enrolment (CoE) in a registered course of study – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.217

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 15 July 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 12 April 2020. 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 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant did not meet PIC 4005 as he had not undertaken the required health examinations. The information indicates that on 24 April 2022 and 2 June 2022 the Department sent correspondence to the applicant requesting more information including Immigration Health Examinations. No response was received.

4. 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).

5. The applicant applied to the Tribunal and attached the decision of the Department.

6. On 24 April 2023 the Tribunal received information the applicant had undertaken a health examination.

7. On 31 May 2023 the Tribunal sent the applicant the following request for information.

   The decision to refuse to grant a visa was made because you, or a visa applicant, did not undergo medical assessments. Our records indicate that these medical assessments have now been completed.

   As a result of recent changes to the medical assessment requirements, additional medical assessments may now be required. These amendments require latent tuberculosis screening for applicants who intend to work, study or train in particular health care settings and who are from, or have spent time in, a higher risk country for tuberculosis (see Schedule 2 and 3 of IMMI 15/144 (compilation no. 1), which commenced on 1 July 2022).

   To assist the Tribunal to determine whether you or the visa applicant may be required to undergo the latent tuberculosis screening, please provide the Tribunal with the following information:

   1. Do you or the visa applicant intend to work as, or study or train to be, a doctor, dentist, nurse or paramedic?

   A. YES

   B. NO

   2. Do you or the visa applicant intend to work as, or study or train to be, a health care worker, or to work within a health care, aged care or disability care facility?

   A. YES

   B. NO

   3. Only answer this question if you have answered yes to either of the above questions. Please list any countries where you, or the visa applicant, have spent three or more consecutive months in the last five years other than Australia.

   Please note that the health criterion requirements must be satisfied at the time of the Tribunal’s decision. If the results of any medical assessments are more than 12 months old, the Tribunal may request a person undergo these medical assessments again.

   We would appreciate it if you could provide a response within 7 days.

8. The applicant responded that he does not intend to work as, or study or train to be a doctor, dentist, nurse or paramedic.

9. On 26 June 2023 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 there was insufficient evidence currently before the Tribunal about this. The PRISMS search showed that the review applicant did not hold a current Confirmation of Enrolment (CoE) in a registered course of study.

10. On 7 August 2023 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 applicant was given until 21 August to comment or respond.

11. The review applicant did not provide their comments or response and the Tribunal has proceeded to making its decision without taking any further steps to obtain them.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The s. 359A invitation was sent to the last address provided in connection with the review and advised that, if information was not provided in writing by 21 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.

14. The review applicant did not provide the information requested within the period allowed. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is 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.

15. 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)

16. 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.

17. ‘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.

18. 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.

19. 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.

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.

    Gabrielle Cullen
    Member