LEE (Migration)

[2020] AATA 2114

LEE (Migration) [2020] AATA 2114 (28 February 2020)

DecsionDate:      28 February 2020

DECISION RECORD

DIVISION:	Migration & Refugee Division
APPLICANT:	Mr Kyuseon Lee
CASE NUMBER:	1814880
HOME AFFAIRS REFERENCE:	BCC2018/1013561
MEMBER:	Dr Jason Harkess
DATE OF DECISION:	28 February 2020
PLACE OF DECISION:	Melbourne
DECISION:	The Tribunal affirms the decision not to grant the Applicant a Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 28 February 2020 at 12:49pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – enrolment in a registered course – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 359, 362
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212; Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of South Korea. He seeks review of a decision made by a delegate of the Minister for Home Affairs on 3 May 2018 refusing to grant him a student visa.

2. The Applicant applied for the visa on 2 March 2018. The specific type of visa he applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as being a Student (Temporary) (Class TU) (Subclass 500) visa.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of section 65 of the Migration Act 1958 (Cth) (‘the Act’).

   [1] Migration Regulations 1994 (Cth), Sch 1, cl 1222; Sch 2, cls 500.1 to 590.612.

3. In this case there is only one applicant. He seeks a student visa so that he can reside in Australia while undertaking a course of study. For the visa to be granted, the Applicant must meet the primary criteria set out in Part 500 of Schedule 2 of the Regulations.[2]

   [2] Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

4. The student visa was refused in this case because the delegate found that the Applicant did not satisfy the primary criteria contained in cl 500.212 of Schedule 2 of the Regulations. The delegate was not satisfied that he was a genuine applicant for entry and stay as a student. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Tribunal by the Applicant when he lodged his review application on 22 May 2018.

DETERMINATION OF APPLICATION WITHOUT HEARING

1. By letter dated 13 February 2020, the Tribunal invited the Applicant to attend a hearing on 28 February 2020 at 9:30 AM in relation to his application for review. The letter included a form, headed ‘Response to Hearing Invitation’, which the Applicant was requested to complete. On the same day as the invitation and attached form was sent, the Tribunal received from the Applicant the returned and completed form. In that form he indicated that he did not wish to participate at a hearing.

2. In the circumstances, the Tribunal cancelled the scheduled hearing and has decided to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.[3]

CONSIDERATION OF CLAIMS AND EVIDENCE

[3] Section 362B(1A)(a) of the Migration Act 1958 (Cth) permits the Tribunal to proceed to make a decision in such circumstances.

Request for Information

1. It has now been more than 21 months since the Applicant lodged his review application. In coming to consider the merits of his case, the Tribunal recognises that the Applicant’s personal circumstances 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 application.

2. To this end, by letter dated 6 November 2019 the Tribunal wrote to the Applicant inviting him pursuant to s 359(2) of the Act to provide information that could assist the Tribunal in determining his application (‘the Tribunal’s s 359(2) request’). The Tribunal’s s 359(2) request included a questionnaire that specifically invited the Applicant to provide information about his personal circumstances, including information about:

   ·his education history overseas;

   ·his education history in Australia;

   ·his current course enrolments in Australia;

   ·previous Australian visa applications he has made;

   ·his immigration history in Australia and in other countries;

   ·his work experience in Australia and in other countries;

   ·his living expenses in Australia;

   ·his family;

   ·his property and assets;

   ·his plans, including job plans, once he completes his proposed course of study; and

   ·concerns he may have about military service commitments, or political or civil unrest in his home country.

3. The Applicant responded to the Tribunal’s s 359(2) request on 20 November 2019 (‘the Applicant’s 359(2) response’). His s 359(2) response included information sought by the Tribunal’s s 359(2) request by way of a completed questionnaire. The Tribunal received the s 359(2) response by the prescribed deadline. Accordingly, the Tribunal is bound to consider it.

Consideration of Primary Criteria for Grant of Student Visa

1. Clauses 500.211 to 500.218 of Sch 2 of the Regulations contain the primary criteria relating to the grant of Subclass 500 student visas. In this case, only cl 500.211 (the enrolment criterion) and cl 500.212 (the genuine applicant criterion) are relevant for determining the outcome of the review application. Whether an applicant satisfies the criteria is to be determined at the time the Tribunal’s decision is made.[4]

Enrolment Criterion

[4] Migration Regulations 1994 (Cth), Sch 2, cl 500.2.

1. For the purposes of the application on review before the Tribunal, cl 500.211 requires that a student visa application be founded on evidence of the applicant being enrolled in ‘a course of study’.[5] A ‘course of study’ is defined as ‘a full-time registered course of study.’[6] A ‘registered course’ is one which is provided by an institution which has been registered under the Education Services for Overseas Students Act 2000 (Cth) (‘ESOS Act’) to provide that course to overseas students.[7]

   [5] Migration Regulations 1994 (Cth), Sch 2, cl 500.211(a). The present case is not advanced on the basis that the Applicant satisfies any of the other criteria contained in cls 500.211(b), (c) and (d).

   [6] Migration Regulations 1994 (Cth), reg 1.03.

   [7] Migration Regulations 1994 (Cth), reg 1.03.

2. 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.[8] 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.[9] 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 will enter 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 cl 500.211 of Sch 2 of the Regulations.

   [8] Education Services for Overseas Students Act 2000 (Cth), s 10.

   [9] See generally Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018)

3. Producing evidence of a 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. Secondly, it obliges the applicant to pay for the course. Thirdly, 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 demonstrates a present and operating commitment on the part of the applicant to complete a course of study. It represents a tangible and immediate need for a student visa.

4. 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 remains enrolled in a registered course of study.[10] 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.

   [10] Migration Regulations 1994 (Cth), Schedule 2, cl 500.611(1)(a); Schedule 8, Condition 8202(2)(a).

5. 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 granted. Indeed, consideration of whether the primary criteria are met, as contained in cls 500.212 to 500.218, is premised on the enrolment criterion in clause 500.211 being met. If cl 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.

6. In this case, the Tribunal cannot be satisfied that the Applicant is currently enrolled in a registered course of study. The Tribunal’s s 359(2) request alerted the Applicant to the importance of having a current CoE by posing the question, ‘Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?’. To this question, the Applicant answered ‘No’.

7. The Tribunal’s s 359(2) request advised the Applicant 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. The letter sent to the Applicant on 13 February 2020, inviting him to a hearing, included the same written warning.

8. In these circumstances, the Tribunal is satisfied that the Applicant has made a conscious and voluntary decision not to produce any evidence of a current enrolment to the Tribunal, and knowing that the failure to have done so may result in the decision under review being affirmed.

9. Based on the material before the Tribunal, the Tribunal is not satisfied that the Applicant is currently enrolled in a registered course of study for the purposes of cl 500.211 of Schedule 2 of the Regulations.

Genuine Applicant Criterion

1. In the circumstances, the question of whether the Applicant meets the criteria under clause 500.211 has become determinative for the purposes of the outcome of the case now before the Tribunal. If the Applicant does not meet the criteria under the clause 500.211, there is no administrative utility in the Tribunal proceeding to consider whether the genuine applicant criterion is met under clause 500.212.

SUMMARY

1. The Applicant does not meet the regulatory requirements for the grant of a student visa because the Tribunal is not satisfied that that Applicant meets any of the criteria contained in cl 500.211 of the Regulations.

DECISION

1. The Tribunal affirms the decision not to grant the Applicant a Student (Temporary) (Class TU) (Subclass 500) visa.

Dr Jason Harkess

Member