Mamun (Migration)

[2024] AATA 306

Mamun (Migration) [2024] AATA 306 (6 February 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Abdullah Al Mamun

CASE NUMBER:  2309451

HOME AFFAIRS REFERENCE(S):           BCC2016/3600646

MEMBER:  T. Quinn

DATE OF ORAL DECISION:  6 February 2024

DATE OF WRITTEN STATEMENT:          6 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 06 February 2024 at 1:00pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit and Family Court remittal – genuine temporary entrant – adjournment request refused – enrolment status – PRISMS check – letter of offer of enrolment – no current active Confirmation of Enrolment (COE) – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

CASES
Mamun v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 419

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. On 28 October 2016, the applicant applied for a Student visa (the visa) to undertake study in Australia (‘the application’).1

2. On 1 March 2017, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.2

3. On 17 March 2017, the applicant applied to this Tribunal for a review of the delegate’s decision.3

4. On 2 July 2018, a Member of this Tribunal affirmed the delegate’s decision to refuse the applicant’s student visa (‘the Tribunal’s first decision’).4

5. On 17 July 2018, the applicant applied to the Federal Circuit and Family Court of Australia (‘the FCFCA’) for a review of the Tribunal’s first decision.

6. On 25 May 2023, the FCFCA ordered that the Tribunal’s first decision be quashed and remitted the applicant’s application to this Tribunal for reconsideration because a review of the Tribunal’s first decision revealed errors of law. The errors of law are set out in the decision of Mamun v Minister for Immigration, Citizenship and Multicultural Affairs.5

7. The errors of law were found to be material and constituted jurisdictional errors.6

8. On 30 January 2024, the applicant requested an adjournment of his hearing (listed for 6 February 2024) stating:

   I am preparing my all documents for Hearing and applied for my course admission to institutes but they are rush due to Happy New Year and Christmas holidays .I need more four weeks time for my admission.Please allow me four weeks time for hearing.Please email me if need any further information.

1. I carefully considered this adjournment request but did not consider it appropriate to further delay finalisation of this matter. In refusing the applicant’s application for an adjournment, the Tribunal noted that his original application the subject of review is now over seven years old. The applicant’s application for review with this Tribunal is now nearly seven years old. In these circumstances, the Tribunal did not consider it appropriate to further delay finalisation of the applicant’s case without persuasive reasons for doing so. In this regard, the Tribunal notes that the Tribunal President has given a Direction in relation to Conducting Migration and Refugee Reviews under section 18B of the Administrative Appeals Tribunal Act 1975 (‘the President’s Direction’). Clause 5.2 of the President’s Direction states that

1Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the former and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

2See clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be genuine applicants for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application

3 Pursuant to sections 338(2) and 347 of the Act.

4            See case number 1705115.

5 [2023] FedCFamC2G 419 per Forbes J.

6            Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 419 at [132].

requests for adjournment of a scheduled hearing will not be granted simply on the basis of the convenience of the review applicant or their representative. Where the Tribunal has given sufficient advance notice of a hearing, adjournments will not be granted on the basis of a need to gather further evidence unless cogent reasons can be shown. Cogent reasons are required for the postponement of a hearing, and not merely for the convenience of the applicant. The Tribunal did not consider adjourning the hearing appropriate in the circumstances.

1. The applicant appeared before the Tribunal via telephone hearing on 6 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

2. It is for the applicant to demonstrate that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

3. In reaching my decision in this case, I have had regard to:

   a.the oral evidence of the applicant given at the hearing;

   b.all written material filed by or on behalf of the applicant; and

   c.other relevant documents on the Tribunal and Department files.

   Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons as set out below. The reasons incorporate reference only to that information that I have found to be fundamental or materially significant to the determination of the issues in the case.

4. For the following reasons, the decision is affirmed. I made an oral decision at the conclusion of the hearing. The following are the reasons for that decision.

STATUTORY FRAMEWORK

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.

Enrolment (clause 500.211)

1. Clause 500.211 relevantly requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.7 The applicant does not claim to meet any of the alternative criteria in clause 500.211 of the Regulations.

2. ‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.8

7 Clause 500.211(a) of Schedule 2 to the Regulations.

8 Regulation 1.03 of the Regulations.

1. 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. Upon enrolling an international student into a registered course of study, the course provider enters 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 clause 500.211 of Schedule 2 of the Regulations.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. While the determinative issue before the delegate was whether the applicant met the genuine temporary entrant criteria under clause 500.212 of the Regulations, it became clear during the hearing that the applicant did not meet the enrolment requirement of clause

   500.211 of Schedule 2 of the Regulations.

Significance of Enrolment Criterion

1. Producing evidence of 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. Second, it obliges the applicant to pay for the course. Third, 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 represents a present and operating commitment by the applicant to complete a course of study. It is persuasive evidence of a tangible and immediate need for a student visa.

2. 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.

3. 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 grated. Indeed, in any case for a student visa, consideration of whether all other primary criteria are met, as contained in clauses 500.211-500.218 of the Regulations, is premised on the enrolment criterion in clause 500.211 first being satisfied. If clause 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.

THE HEARING

9 Section 10 of the ESOS Act.

10See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).

11 Schedule 5 to the Regulations.

1. The applicant first arrived onshore on a student visa in 2008 and has remained onshore since that time, with some return trips to his home country.

2. In the introduction to hearing, I stated that in an application for review of this type, I must consider certain things:

   a.one is whether you are enrolled in a course of study (clause 500.211(a)); and

   b.the other is whether you are a genuine applicant for entry and stay as a student intending genuinely to stay in Australia temporarily (clause 500.212(a)).

3. I asked if the applicant had any questions and the applicant said no.

4. The applicant initially gave evidence at hearing that he was enrolled.

5. A PRISMS check was undertaken in relation to the applicant immediately prior to the hearing which indicated the applicant is not currently enrolled. At hearing, I explained what a PRISMS search was and that I had information before me that was adverse to the applicant’s case. I explained that the PRISMS search for the applicant indicated the applicant was not enrolled, that this could be a reason or part of the reason for affirming the decision in this case and gave the applicant an opportunity to respond. The applicant said that he had a letter of admission and was awaiting his confirmation of enrolment and that there had been delays due to the holiday period.

6. In relation to the evidence before me, I note that the applicant completed the study he proposed, a Bachelor of Professional Accounting, in July 2019. I commend him in this regard. However, the applicant gave evidence at hearing that he had initially planned to return to his home country after his Bachelor but then the COVID19 Pandemic occurred and then he was ‘waiting to see how things worked out’. He gave evidence that he has not engaged with study since completion of his Bachelor in July 2019. I acknowledge that the COVID19 Pandemic created significant uncertainty throughout 2020 and 2021. However, the applicant has not provided any evidence that he attempted to engage with any further study for the last three and a half years since July 2019.

7. The Tribunal wrote to the applicant by letter on 29 November 2023 inviting him to a hearing scheduled for 16 January 2024. In that letter, the Tribunal advised that it was necessary for the applicant to produce a COE or other documents showing that they are currently enrolled in a course of study as defined by Clause 500.211 of Schedule 2 of the Regulations. It was made clear in that letter that proof of enrolment is a requirement for the grant of a student visa. The Tribunal requested such proof be provided 7 days prior to the scheduled hearing. The applicant confirmed at hearing that he read this document.

8. The hearing of 16 January 2024 was adjourned to 6 February 2024.

9. The Tribunal wrote to the applicant by letter on 18 January 2024 inviting him to the hearing scheduled for 6 February 2024. In that letter, the Tribunal advised that it was necessary for the applicant to produce a COE or other documents showing that they are currently enrolled in a course of study as defined by Clause 500.211 of Schedule 2 of the Regulations. It was made clear in that letter that proof of enrolment is a requirement for the grant of a student visa. The Tribunal requested such proof be provided 7 days prior to the scheduled hearing. The applicant confirmed at hearing that he read this document.

10. The applicant sought and was refused an adjournment on 30 January 2024, as set out in paragraphs 8 and 9 above. Later the same day, the applicant filed a completed, signed and

dated response to the hearing invitation of 18 January 2024.     At hearing, the applicant confirmed he had read this document when he filled it in and signed it.

1. On 30 January 2024, the applicant also filed an offer of enrolment dated 30 January 2024. This is not signed by him and does not constitute a current confirmation of enrolment. I am very troubled by this in the context of the history of the last three and a half years.

2. I explained that the question for determination before me had changed. Although disappointed, the applicant indicated that he understood.

3. The applicant has not supplied any current, active COE or other document showing he is currently enrolled. A letter of offer of enrolment does not constitute an actual current, active enrolment. The evidence in the PRISMS search is that the applicant does not hold a current COE. The Tribunal undertook a PRISMS search on 5 February 2024 which is identical to the search of 6 February 2024 and I have placed no weight against the applicant in relation to those searches, save for the evidence that he is not enrolled, which was put to him at hearing.

4. Being enrolled is a mandatory requirement and the applicant does not satisfy that mandatory requirement. The applicant was unable to produce evidence that persuaded me that he holds a current Confirmation of Enrolment which would establish that he meets the essential requirement under clause 500.211(a).

5. The applicant has had an adequate opportunity to obtain such evidence.

6. The applicant does not meet the regulatory requirements for the grant of a student visa because there is no evidence satisfying any of the criteria in clause 500.211 of the Regulations.

CONCLUSIONS

1. I am not satisfied that at the time of my decision, the applicant is enrolled in a course of study and accordingly clause 500.211 of the Regulations is not met.

2. 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

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

   T. Quinn Member