OSORIO MARIN (Migration)

[2023] AATA 296

OSORIO MARIN (Migration) [2023] AATA 296 (13 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JORGE ALEJANDRO OSORIO MARIN

REPRESENTATIVE:  Mr CRISTIAN AGUIRRE (MARN: 0955951)

CASE NUMBER:  2119730

HOME AFFAIRS REFERENCE(S):          BCC2019/908398

MEMBER:Peter Booth

DATE:13 February 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 13 February 2023 at 10:26am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no current enrolment – no response to tribunal’s invitations to provide information and comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.111, 500.211(a), 500.212

CASE
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 15 December 2021 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 15 January 2020. 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 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) because the applicant was not a genuine applicant for entry and stay as a student. For the reasons explained below, the issue now before the Tribunal is whether the applicant is enrolled in a course of study as required by cl 500.211(a).

4. The applicant was assisted in relation to the review by his registered migration agent.

5. On 24 October 2022 the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting the applicant to provide the following information in writing.

   As 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.

   Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking 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 form which you can access by clicking on the link below.

6. The invitation was sent to the last address provided in connection with the review and advised that, if information was not provided in writing by 7 November 2022, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. On 7 November 2022, the applicant’s representative informed the Tribunal that they no longer acted for the applicant, but the applicant did not withdraw the appointment of this representative. On 8 November 2022, the Tribunal notified the representative that it is obliged by law to continue sending correspondence to him until the applicant withdraws the appointment. With this letter the Tribunal enclosed a form for the applicant to complete in order to effect the withdrawal of their representative. The Tribunal also sent a copy of the invitation to the applicant’s personal email address. The Tribunal did not receive a response from the representative or the applicant.

7. The review applicant did not provide the information requested within the period allowed. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

8. On 3 January 2023, 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.

9. On 9 January 2023, the Tribunal wrote to the review applicant pursuant to s 359A of the Act, inviting the 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 he 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).

10. On 10 January 2023, the applicant’s representative again wrote to the Tribunal stating that they were no longer engaged to represent the applicant. On that same day the Tribunal sent letters to the representative and the applicant, seeking acknowledgement from the applicant that he had withdrawn his authorisation of the representative to act and receive correspondence on their behalf. The Tribunal also sent the s 359A letter to the applicant’s email address. The Tribunal received no response from the applicant or his representative.

11. As the review applicant did not provide his comments or response, the Tribunal has proceeded to making its decision without taking any further steps to obtain them.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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 in the present case is whether the applicant is enrolled in a full-time registered course, and therefore a course of study, as required by cl 500.211(a).

    Enrolment (cl 500.211)

14. 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.

15. ‘Course of study’ is relevantly defined in cl 500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in reg 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 (ESOS Act), to provide the course to overseas students.

16. 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.

17. 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.

18. The Tribunal conducted a further PRISMS search on 13 February 2023. This search confirmed that the applicant does not hold a current CoE, and is not currently enrolled in a course of study. 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

    DECISION

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

    Peter Booth
    Member