Navdeep Singh (Migration)

[2022] AATA 690

Navdeep Singh (Migration) [2022] AATA 690 (11 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Navdeep Singh

REPRESENTATIVE:  Mrs Vandna Sood (MARN: 0960183)

CASE NUMBER:  1925668

HOME AFFAIRS REFERENCE(S):         BCC2019/3655836

MEMBER:D Triaca

DATE:11 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 11 March 2022 at 2:01pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – enrolment in a registered course – courses completed – college cancelled course – decision under review affirmed         

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cls 500.111, 500.211, 500.212; r 1.03

CASES

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 27 August 2019 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 23 July 2019. 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 in this case 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).

4. The applicant was assisted in relation to the review.

5. The Tribunal formally wrote to the applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal on 26 May 2020. The invitation advised that, if the information was not provided in writing by the prescribed period or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicants 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 Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the applicant‘s nominated address, being the address provided by the review applicants in connection with this application for review.

7. The applicant responded to the tribunal in writing (359 Response) and confirmed that he did not wish to appear at a hearing before the tribunal. In these circumstances, the applicant is not entitled to appear before the Tribunal: Section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

8. It is appropriate to highlight that a decision maker is not required to make the applicant‘s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

9. In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department as well as information that may be discerned from the delegate’s decision itself. A copy of the delegate’s decision was provided to the Tribunal with the review application.

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.

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 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.

14. Producing evidence of a 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. 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 remains enrolled in a registered course of study. 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.

15. 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 granted. Indeed, in any case for a student visa, consideration of whether all other primary criteria are met, as contained in cos 500.212 to 500.218 is premised on the enrolment criterion in clause 500.211 first being satisfied. If cl 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.    

16. The applicant’s written 359 Response stated that the applicant had completed a General English course and Certificate IV in Business. It stated that the applicant was enrolled in a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management at Angad Australian Institute of Technology. Whilst this may have been accurate at the time, it is no longer the position.

17. On 22 November 2021 the Tribunal accessed the review applicant’s record on the Provider Registration and International Student Management System register (PRISMS). 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. The record reflects that the applicant’s most recent enrolments were cancelled on 14 June 2020 and there is nothing to suggest the applicant has enrolled in any further study since that time.

18. 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 ESOS Act. 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.

19. 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.           

20. On  24 November 2021 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).

21. The applicant responded to the tribunal in writing on 2 December 2021 as follows (relevantly):

    “I Navdeep Singh belong to Punjab India and I completed my year 12 from Punjab Education Board. I didn’t get enough qualifications and got the work-permit to do job in Malaysia before I came to Australia.  When I came to Australia and found this country good for my future studies.  I was lacking in English and I have been given the opportunity to finish this course by Department of Immigration and Border Protection by offering me the study visa under visa subclass 500.  I have made some very good friend during this short study as lot of students come to study from various part of the world and it has given good exposure.

    I understand that I have in between not completed my Cert. IV and Diploma and Advanced Diploma of Leadership Management were cancelled and the reason as the college was under scrutiny and were under audit.  The college were themselves not sure and they start cancelling the students without any valid reasons.

    While these hassles were going on and I was applying other colleges and trying my best to get my further education I was helping myself to get enrolled to the new college but as college gets very strict to offer admission and it was not easy for me to get a new offer letter. 

    I was also working part-time and to be very frank not able to give enough time to concentrate on my new enrolment.

    Later on the Covid 19 pandemic started and I got stuck in between this and could not get myself admitted into any college.  As I said above no college were offering me the course and mainly after this pandemic it was not easy as you can understand the whole scenario.

    I herewith request the tribunal member to consider my case sympathetically and give me time to provide a new offer letter/COE so that I can full-fill my dream to study further in this country.”

22. Notwithstanding that three months have elapsed since the applicant’s correspondence, there is no evidence that he has obtained a further enrolment. The tribunal has considered the matters set out in his response. None of the matters raised individually or collectively assist the applicant on this application. The fact remains that there is no evidence that he has enrolled in any form of study for over 18 months and the tribunal cannot be satisfied that the applicant is currently enrolled in a registered course of study.

23. The Tribunal does not consider it appropriate to engage in such speculation for the purposes of determining whether the criteria contained in clause 500.211 are satisfied. Cogent evidence of a current enrolment must be presented to the tribunal before it can make a finding that the applicant is currently enrolled in a registered course of study. There is presently no such evidence before the tribunal.

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.

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.

    D Triaca
    Member