Leong (Migration)
[2022] AATA 3762
•14 October 2022
Leong (Migration) [2022] AATA 3762 (14 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Suet Lai Leong
CASE NUMBER: 2201604
HOME AFFAIRS REFERENCE(S): BCC2021/1332064
MEMBER:Dr Jason Harkess
DATE:14 October 2022
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 14 October 2022 at 4:02pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – false or misleading information in the visa application – enrolment in a course of study – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2 cl 500.211; Schedule 4, Public Interest Criterion 4020; r 1.03
CASES
Hasran v MIAC [2010] FCAFC 40
STATEMENT OF DECISION AND REASONS
INTRODUCTION AND Overview
Application for Review – Refusal of Student Visa
The Applicant is a citizen of Malaysia. She seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the Minister’) refusing to grant her a student visa. The Applicant is 41 years of age.
The Applicant originally applied for the student visa on 29 June 2021. The visa was refused on 19 January 2022. The Applicant lodged her review application with the Tribunal on 7 February 2022. In these circumstances, the Tribunal has jurisdiction to conduct a review in relation to the delegate’s decision refusing the Applicant her visa.[1]
[1] The relevant statutory provisions conferring jurisdiction on the Tribunal to conduct a review in this case are set out in Divisions 2 and 3 of Part 5 of the Migration Act 1958 (Cth). There is no issue arising as to those requirements not being met in this case.
Type of Visa
The specific type of visa the Applicant applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Student (Temporary) (Class TU) (Subclass 500) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’). If granted, a student visa permits a non-citizen to enter and remain in Australia to study full-time on a temporary basis.
[2] See Migration Regulations 1994 (Cth), Sch 1, cl 1222; Sch 2, cls 500.1 to 590.612.
Applicable Criteria
For a student visa to be granted, an applicant must meet the primary criteria set out in Part 500 of Schedule 2 of the Regulations.[3] These include the following requirements:
(a)the applicant is enrolled in a course of study, as required by cl 500.211 (‘the enrolment criterion’);
(b)the applicant is a genuine applicant for entry and stay as a student, as required by cl 500.212 (‘the genuine applicant criterion’);
(c)the applicant meets specified English language proficiency requirements, as required by cl 500.213 (‘the English language proficiency criterion’);
(d)the applicant has genuine access to funds available to meet the costs and expenses associated with their stay in Australia, as required by cl 500.214 (‘the genuine access to funds criterion’);
(e)the applicant has in place adequate arrangements for health insurance during their intended stay in Australia, as required by cl 500.215 (‘the health insurance criterion’);
(f)if the applicant is a school student, the applicant is of an appropriate age, as required by cl 500.216 (‘the school age criterion’);
(g)the applicant satisfies certain public interest criteria, as required by cl 500.217 (‘the public interest criterion’);
(h)the applicant does not fall with a specified category of persons who have either been previously deported or removed from Australia, as required by cl 500.218 (‘the special return criterion’).
[3] See Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.
The above criteria are to be ‘time of decision’ criteria. That means that the criteria must be satisfied at the time a relevant decision-maker makes a determination in relation to the visa application. In the case of the present review application, the criteria must be met at the time the Tribunal makes its decision.
Delegate's Reasons for Visa Refusal
The student visa was refused in this case because the delegate found that the Applicant did not satisfy the public interest criterion. Specifically, the delegate was not satisfied that the Applicant met Public Interest Criterion 4020 (‘PIC 4020’),[4] which requires that there be no evidence of the Applicant having provided a bogus document or false or misleading information in connection with the visa application or a visa held immediately prior to the application being made.
[4] See Migration Regulations 1994 (Cth), Sch 2, cl 500.217(1); Sch 4, 4020
The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Applicant when he was notified of the delegate’s decision. That notification prompted the Applicant to lodge the present review application. The Applicant also provided the Tribunal with a copy of the delegate’s decision record after lodging the review application.
Issues for Determination by Tribunal
The following issues arise for determination by the Tribunal in relation to the present review application:
(a)whether the Applicant meets the enrolment criterion;
(b)whether the Applicant meets PIC 4020.
Determination of Application without Hearing
On 29 September 2022 the Tribunal wrote to the Applicant pursuant to s 359A of the Act (‘the s 359A correspondence). The s 359A correspondence:
(a)informed the Applicant that the Tribunal had conducted a check of the Provider Registration and International Student Management System (‘PRISMS’) database in relation to the Applicant’s enrolment status and education history in Australia on 15 September 2022, which revealed the Applicant was not enrolled in any course of study;
(b)informed the Applicant that this may be a reason for affirming the decision not to grant her a student visa because it indicates she does not meet the enrolment criterion;
(c)invited the Applicant to comment on or respond to the information within 14 days;
(d)informed the Applicant that, if she could not provide her comments or response within the specified 14-day timeframe, she may ask for an extension of that timeframe; and
(e)informed the Applicant that if the Tribunal did not receive a response, or a request for an extension of time, within 14 days:
(i)the Tribunal may proceed to make a decision in relation to her review application without taking any further action to obtain her views on the information; and
(ii)she would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The Applicant failed to respond to s 359A correspondence by 13 October 2022. No requests for more time to respond to the s 359A correspondence have been made by the Applicant.
By the operation of s 359C(2) of the Act, in circumstances where the Applicant has been invited to comment on information pursuant to s 359A and has failed to do so, the Tribunal may proceed to make a decision on the review without taking any further action to obtain the Applicant’s views on the information. Furthermore, by the operation of ss 360 and 363A, the Applicant in these circumstances is not entitled to appear before the Tribunal to give evidence and present arguments.[5] Accordingly, the Tribunal has proceeded to determine the review application on the basis of the information before it.
[5] Hasran v MIAC [2010] FCAFC 40.
Tribunal’s Determination
The Tribunal has concluded that the decision to refuse the Applicant a student visa ought to be affirmed in this case, for the reasons which are set out below.
CONSIDERATION OF CASE
Enrolment Criterion
Clause 500.211 requires that a student visa application be founded on evidence of the applicant being enrolled in ‘a course of study’.[6] A ‘course of study’ is defined as ‘a full-time registered course of study.’[7] 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.[8]
[6] 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).
[7] Migration Regulations 1994 (Cth), reg 1.03.
[8] Migration Regulations 1994 (Cth), reg 1.03.
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.[9] 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.[10] 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.
[9] Education Services for Overseas Students Act 2000 (Cth), s 10.
[10] 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).
Producing evidence of a current enrolment is a critical first step towards obtaining a student visa. Such evidence shows that a student visa 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 represents a present and operating commitment by the applicant to complete a course of study. It demonstrates a tangible and immediate need for a student visa.
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 remain enrolled in a registered course of study.[11] 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.
[11] Migration Regulations 1994 (Cth), Schedule 2, cl 500.611(1)(a); Schedule 8, Condition 8202(2)(a).
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 cl 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.
The PRISMS report obtained on 15 September 2022 indicated that the Applicant was not currently enrolled in a registered course of study on that date. The Applicant has not taken any steps to furnish the Tribunal with information which might have displaced the inference to be drawn from that report that the Applicant does not meet the enrolment criterion. A further check of the PRISMS database conducted on 14 October 2022 has revealed that the Applicant’s enrolment status remains unchanged.
While the determinative issue for the delegate was whether the Applicant met the public interest criterion, the Tribunal has concluded that the decision under review ought to be affirmed in this case because the Applicant does not meet the enrolment criterion.
The Tribunal finds that the Applicant does not meet the criteria contained in cl 500.211 because she is not currently enrolled in a registered course of study.
Public Interest Criterion – PIC 4020
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 clause 500.211, there is no administrative utility in the Tribunal proceeding to consider whether the applicant meets PIC 4020.
Conclusion
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.
Decision
The Tribunal affirms the decision not to grant the Applicant a Student (Temporary) (Class TU) (Subclass 500) visa.
Dr Jason Harkess
Member
Leong (Migration) [2022] AATA 3762
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