Muigai (Migration)

[2023] AATA 2126

Muigai (Migration) [2023] AATA 2126 (26 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kevin Kinyanjui MUIGAI

REPRESENTATIVE:  Mr Harjeet Singh (MARN: 1679096)

CASE NUMBER:  2307439

HOME AFFAIRS REFERENCE(S):          BCC2021/262586

MEMBER:Mireya Hyland

DATE:26 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.211 of Schedule 2 to the Regulations.

Statement made on 26 June 2023 at 2:27pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment status – Provider Registration and International Student Management System (PRISMS) record – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.211

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 9 May 2023 to refuse to grant the applicant, Kevin Kinyanjui Muigai, a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Muigai applied for the visa on 20 February 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). Mr Muigai applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. The criteria for the grant of a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that Mr Muigai did not satisfy the requirements of cl.500.211 of because he was not enrolled in a course of study.

4. The issue in this case is whether Mr Muigai is enrolled in a registered course as required by the Regulations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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). Mr Muigai does not claim to meet any of the alternative criteria in cl.500.211 of the Regulations.

6. A ‘course of study’ is defined in cl.500.111 of the Regulations as, among other things, a ‘full-time registered course’. A ‘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 in Part 2 of the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act) to provide the course to overseas students.

7. The Department of Education (DOE) is responsible for the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and the Provider Registration and International Student Management System (PRISMS). PRISMS is a computer system developed by DOE in association with the Department of Home Affairs (DHA) to receive and store the information about accepted overseas students that is given to the Secretary under the ESOS Act. It provides a secure system for CRICOS registered educational institutions to issue ‘confirmations of enrolment’ (CoEs) as evidence of enrolment in a CRICOS registered full-time course and reports cancellation or changes of enrolment, for instance failure to commence study, unsatisfactory progress, ceasing study, changes to the duration of study, etc. The Tribunal is satisfied that a PRISMS search is reliable evidence of the enrolment in a full-time ‘registered course’ (as defined) of the person who is the subject of the search.

8. The Tribunal made a search of PRISMS on 26 June 2023 to verify whether Mr Muigai is enrolled in a full-time registered course. The PRISMS search revealed that he has been enrolled in and studying a Graduate Diploma of Management (Learning) (CoE E5A7D333) since 5 June 2023, due to be completed on 2 June 2024. He is not approved for any further study in Australia.

9. Therefore, at the time of this decision, Mr Muigai is enrolled in a course of study and accordingly cl.500.211 is met.

10. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

11. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.211 of Schedule 2 to the Regulations.

    Mireya Hyland
    Member