Lin (Migration)

[2024] AATA 3069

Lin (Migration) [2024] AATA 3069 (12 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Baosheng Lin

REPRESENTATIVE:  Ms Kimberley Glissan

CASE NUMBER:  2211961

HOME AFFAIRS REFERENCE(S):          BCC2021/351187

MEMBER:Gabrielle Cullen

DATE:12 August 2024

PLACE OF DECISION:  Sydney

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

Statement made on 12 August 2024 at 2:55pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – course successfully completed and no current enrolment – delay due to tribunal’s backlog – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.111, 500.211(a), 500.212

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 28 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 9 March 2021. 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. With the application was evidence the applicant was enrolled in a Master of Professional Accounting from 22 February 2021 to 30 June 2022. The evidence indicates the applicant changed education providers and successfully completed the Master of Professional Accounting early on 22 November 2022.

4. The delegate refused to grant the visa on 28 July 2022 on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied the applicant was a genuine applicant for entry and stay as a student.

5. On 17 August 2022 the applicant applied for review and attached the delegate’s decision.

6. On 19 January 2024 the Tribunal wrote the applicant a s 359(2) letter, which stated as follows:

   As you applied for this visa on the basis of undertaking a course of study in Australia, it is a requirement for the visa that you are enrolled in a registered course of study and that you are a genuine applicant for entry and stay as a student.

   Accordingly, you are now invited to give, in writing, information about your proposed course(s) of study 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 questionnaire attached with this letter. The information requested should be given by completing the attached questionnaire and returning it to us.

7. The Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student, the Tribunal must have regard to Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ and attached a copy. This has since changed to Ministerial Direction No. 108. The Tribunal raised at hearing the content of Ministerial Direction No. 108 and noted it is essentially the same as Ministerial Direction No. 69 as to matters to consider when determining whether the applicant is a genuine applicant for entry and stay as a student.

8. Following the grant of an extension of time to respond, on 15 March 2024 the applicant’s representative advised the applicant is not the holder of a COE and cannot study due to the refusal of his visa.

9. Because there was no information provided about whether the applicant was currently enrolled in a course of study, and therefore whether he satisfied cl.500.211, the Tribunal caused a search of PRISMS, being the Provider Registration and International Student Management System register, to be undertaken. The purpose of this search was to ascertain whether the first named applicant was enrolled in a registered course.

10. 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 Education Services for Overseas Students Act 2000. 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.

11. 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.

12. The PRISMS search revealed that the applicant did not hold a current confirmation of enrolment in a registered course as 12 August 2024, being the date of the search.

13. The applicant appeared before the Tribunal by video on 12 August 2024 to give evidence and present arguments. Ms Lin Su appeared as a witness but ultimately did not give evidence when asked.

14. His representative attend the hearing.

15. The Tribunal raised with the applicant that a matter before it is whether he meets the enrolment criteria as required by cl.500.211 which is required for the grant of a student visa. It outlined cl.500.211. It also raised with him that another matter before it is whether he meets the requirement of cl.500.212. It outlined the section, the relevance of Direction 108 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as student. It noted that the Direction had changed from Direction 69 to Direction 108 but the matters to be considered as outlined in the Direction were the same.

16. At hearing the applicant indicated he was not currently enrolled in a course of study. Via the process outlined in s.359AA the Tribunal raised with the applicant that the PRISMS record indicates that he is not currently enrolled in a course of study as he finished early the Master of Professional Accounting early on 22 November 2022. It raised with the applicant the consequence of relying on the information with regard to cl.500.211 and cl.500.212.

17. The applicant’s representative noted the errors in the delegate’s decision, including that he was a genuine student and genuine temporary entrant, referring to letters from his teachers that he is a genuine student, the evidence of family ties in China and none in Australia, his employment with the Bank of China and link between the course he is studying and his employment.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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 before the delegate was whether the applicant met the criterion in cl.500.212, however as raised with the applicant another matter before the Tribunal is whether he meets cl.500.211.

20. 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.

21. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.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, to provide the course to overseas students.

22. The Tribunal raised with the applicant the requirement of enrolment for the grant of a student visa at the hearing. The evidence from the applicant and the PRISMS record, raised with the applicant via s.359AA, is that the applicant is not currently enrolled in a course of study.

23. The Tribunal is of the view that had it heard this case earlier, while the applicant was enrolled and studying the Master of Professional Accounting to November 2022 it would have found him to meet cl 500.212 and cl 500.211. It notes the delay by the Tribunal in deciding this case due to its backlog of cases has resulted in the applicant now not being enrolled. This is very unfair to the applicant as he was enrolled, studying and a genuine student. However, as he is now not enrolled and cl 500.211 is a time of decision criteria, the Tribunal must affirm the review.

24. Therefore, on the evidence before it, 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.

25. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Gabrielle Cullen
    Senior Member