Lin (Migration)

[2023] AATA 2119

Lin (Migration) [2023] AATA 2119 (5 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Li Lin

CASE NUMBER:  2203488

HOME AFFAIRS REFERENCE(S):          BCC2020/1370781

MEMBER:Michael Biviano

DATE:5 July 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 05 July 2023 at 3:10pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – not currently enrolled in registered course – no response to tribunal’s invitations to provide information or comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.111, 500.211(a), 500.212

CASE
Hasran v MIAC [2010] FCAFC 40

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 24 February 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 15 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 500.212 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. On 3 May 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.

5. 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 17 May 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.

6. 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.

7. On 24 May 2023, the Tribunal accessed the review applicant’s record on the Provider Registration and International Student Management System (PRISMS) register. 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.

8. On 25 May 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).

9. 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.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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)

12. 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.

13. ‘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.

14. 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 that 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 courses 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.

15. 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.

16. The applicant is a 35-year-old Chinese national who had studied in Australia and whose highest qualification was a Diploma of Leadership and Management.

17. The decision record of the delegate of the Department of Home Affairs dated 24 February 2022 which was provided to the Tribunal by the applicant confirms that she made the application for a student Class TU Subclass 500 visa on 15 April 2020 and set out the reasons for the visa refusal (Decision Record). The Decision Record confirmed that she was intending to study a Certificate IV and Diploma of Project Management.

18. The PRISMS search revealed that the applicant was not enrolled in a registered course of study after 2 November 2020 and she is not enrolled in a registered course of study at present.

19. The Tribunal in its letter to the applicant dated 3 May 2023 expressly placed the applicant on notice of the requirement to be enrolled in a registered course of study.

20. Further the Tribunal in its letter to the applicant dated 25 May 2023 inviting the applicant to comment on the PRISMS search also placed the applicant on notice that based on the content of the PRISMS search a decision may be made refusing the review application on the basis that she was not enrolled in a registered course of study. The invitation relevantly stated:

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·     A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that you do not hold a current Confirmation of Enrolment in a course of study.

    This information is relevant to the review because you have applied for a Student visa and it is a requirement for the grant of a Student visa that you are enrolled in a course of study at the time of decision (clause 500.211). A course of study is defined as a fulltime registered course. There are limited exceptions to this requirement which do not appear to be relevant to your review (such as where you are a Foreign Affairs, Defence or secondary exchange student).

    If we rely on this information in making our decision, we may find that you are not currently enrolled in a course of study. This would mean that you do not meet clause 500.211. The consequence of the Tribunal relying on this information is that it would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant you a Student visa.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 8 June 2023. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

21. Despite the applicant being placed on notice in the letter from the Tribunal dated 25 May 2023 that she did not hold a current CoE and placing her on notice that the failure to be enrolled in a course of study may be a basis to affirm the decision of the delegate, she did not respond to the invitation or provide any documents or information addressing whether she is enrolled in a course of study.

22. The applicant has not provided to the Tribunal any CoE or any corroborating documents confirming that she is currently enrolled in a registered course of study.

23. Based on the PRISMS record and the lack of material and evidence submitted to the Tribunal by the applicant, it is not satisfied at the time of this decision that the applicant is enrolled in a course of study.

24. 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

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

    Michael Biviano
    Member