Manjeet Kaur (Migration)

[2020] AATA 4461

Manjeet Kaur (Migration) [2020] AATA 4461 (19 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Manjeet Kaur
Yuvraj Suri

CASE NUMBER:  1920302

HOME AFFAIRS REFERENCE(S):          BCC2019/2576727

MEMBER:T. Quinn

DATE OF ORAL DECISION:  19 August 2020

DATE OF WRITTEN STATEMENT:         19 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 19 August 2020 at 11:06am

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

LEGISLATION
Education Services for Overseas Students Act 2000, s 10
Migration Act 1958, ss 65, 338, 347, 359
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212; r 1.03

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 (‘the delegate’) on 12 July 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicants applied for the visas on 16 May 2019 (‘the application’).  At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (‘the applicant’) applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 12 July 2019, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant 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.

4. On 24 July 2019, the applicants applied for a review of the delegate’s decisions with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. More than 12 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application 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 outcome of their application for review. To this end, on 28 April 2020, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The applicants responded to the s359(2) letter on 11 May 2020 which was within the prescribed period.

6. The applicant appeared before the Tribunal on 19 August 2020 to give evidence and present arguments.  

7. The applicants were assisted in relation to the review by their registered migration agent, but their agent did not attend the hearing.

8. It is for the applicants to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicants’ 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 applicants, in as much detail as necessary, to enable the decision maker to properly consider the case that is being put.

9. The Tribunal has proceeded to a decision having regard to all the information before it, including the material and evidence provided by the applicant prior to and on the day of the hearing.

10. For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed in this case.  In reaching its decision, the Tribunal has 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.

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

11. The Tribunal has concluded that the decision under review should be affirmed.  The Tribunal gave its decision on the review at the conclusion of the hearing held on 19 August 2020.  The following are the reasons for that decision.

    STATUTORY FRAMEWORK

12. 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. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

13. 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 at the outset of the hearing that the applicant did not meet other criteria that must be satisfied for the grant of a student visa.

    Enrolment (clause 500.211)

14. 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.[1] The applicant does not claim to meet any of the alternative criteria in clause 500.211 of the Regulations.

    [1]Clause 500.211(a) of Schedule 2 to the Regulations.

15. ‘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 Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[2]

    [2]Regulation 1.03 of the Regulations.

16. 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.[3]  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.[4] 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.

    [3]Section 10 of the ESOS Act.

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

    Significance of Enrolment Criterion

17. 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.

18. 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.[5]  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.

    [5]Schedule 5 to the Regulations.

19. 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

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

    a.one is whether you are enrolled in a course of study (cl500.211(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 (cl 500.212(a)).

21. The Tribunal then asked if the applicant had any questions to which they responded in the negative.

22. The Tribunal also confirmed that the applicant had read the s359(2) letter and associated questionnaire when answering the questions in the questionnaire.

23. The s359(2) letter stated ‘[a]s 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.’

24. The s359(2) letter also made is clear 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.

25. The questionnaire to be completed pursuant to the s359(2) letter (‘the questionnaire’) makes several requests for information relating to the enrolment condition contained in clause 500.211 of the Regulations. In the section of the questionnaire making these enquiries, the document also states “[n]ot being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.” Here, the questionnaire specifically asks the following question: ‘Does the Main Applicant have a current Confirmation of Enrolment (C oE) in a registered course of study?’ To this question, the applicant answered ‘yes’ and indicated that she has completed the following courses since her arrival in Australia:

    a.A Certificate III in Printing and Graphic Arts in 2010;

    b.A Certificate IV in Business in 2010;

    c.A Diploma of Management in 2011;

    d.A Diploma of Marketing in 2012;

    e.An Advanced Diploma of Marketing in 2013; and

    f.A Diploma of Hospitality (Commercial Cookery) in 2014.[6]

    The applicant stated that she was enrolled in a Diploma of Leadership and Management which she was ‘studying now’.[7] The Diploma of Leadership and Management had course dates of October 2019-October 2020, however, the applicant did not provide a confirmation of enrolment to the Tribunal in her response to the s359(2) letter.

    [6] See applicant’s response to the s359(2) letter.

    [7]See applicant’s response to the s359(2) letter.

26. The questionnaire requests information in relation to all enrolments and specifically states that this includes: cancelled enrolments; courses successfully completed; and current or future enrolments (emphasis added), the applicant did not list any future enrolments. 

27. When the Tribunal wrote to the Applicant by letter on 4 August 2020 inviting them to the hearing scheduled for 19 August 2020, 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. As at the time of this decision, there remains no such proof.

28. On 14 August 2020, the applicant responded to the hearing invitation.

29. At hearing, the applicant gave evidence that she is not studying at the moment.  Upon further questioning, the applicant gave evidence that her enrolment was cancelled in late last year and that she has not enrolled in a new course since that time

30. The Tribunal asked whether the applicant held a current confirmation of enrolment and her evidence was that she did not.

31. The Tribunal considered and explained that the determinative issue in the applicant’s case had changed as a current confirmation of enrolment has not been provided and the applicant’s evidence was that they understood and that they are not currently enrolled.  

32. The applicant was unable to produce evidence of a current Confirmation of Enrolment to the Tribunal at the hearing which would establish that they met the essential requirement under clause 500.211(a).

33. The Tribunal has no evidence of a current Confirmation of Enrolment which would establish that the applicant meets the essential requirement under clause 500.211(a) of the Regulations.

34. The applicant has had an adequate opportunity to obtain such evidence and certainly since receiving the s359(2) letter in April of this year which made clear the importance of the enrolment criteria. In the circumstances, the question of whether the applicant meets the criteria under clause 500.211 has become determinative for the purposes of the case before the Tribunal. If the applicant does not meet the criteria under clause 500.211, then there is no utility in the Tribunal proceeding to consider whether the genuine temporary entrant criteria are met under clause 500.212.

35. 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

36. Therefore, the Tribunal is not satisfied that at the time of its decision, the applicant was enrolled in a course of study and accordingly clause 500.211 of the Regulations is not met.

37. 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.

38. Consequently, as the decision in relation primary applicant’s review has been affirmed, the Tribunal cannot be satisfied that clause 500.311 in Schedule 2 of the Regulations is met by the secondary applicant as it requires that they be a member of the family unit of a person who satisfies, or has satisfied, the relevant primary criteria.

39. Therefore, the criteria for the grant of a Student visa are not met by the secondary applicant and the decision in relation to the secondary applicant’s review must also be affirmed.

    DECISION

40. The Tribunal affirms the decisions not to grant the applicants’ Student (Temporary) (Class TU) visas.

    T. Quinn
    Member