Phagura (Migration)

[2023] AATA 1756

Phagura (Migration) [2023] AATA 1756 (17 April 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Sukhdeep Singh Phagura

REPRESENTATIVE:  Mr Dilpreet Singh (MARN: 0956305)

CASE NUMBER:  2201588

HOME AFFAIRS REFERENCE(S):           BCC2019/6937173

MEMBER:  T. Quinn

DATE OF ORAL DECISION:  17 April 2023

DATE OF WRITTEN STATEMENT:          17 April 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 17 April 2023 at 5:13pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment requirement – not enrolled in a registered course of study – decision under review affirmed

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. On 31 December 2019, the applicant applied for a Student visa1 to undertake study in Australia (‘the application’).2

1. On 20 January 2022, 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.3

1. On 7 February 2022, the applicant applied to this Tribunal for a review of the delegate’s decision.4

1. The applicant appeared before the Tribunal to give evidence and present arguments in a telephone hearing on 17 April 2023. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was assisted in relation to the review and his representative also attended the hearing on 17 April 2023.

1. 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.

1. I have proceeded to a decision having regard to all the information before me, including the material and evidence provided by the applicant on the day of the hearing.

1. 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 both before and after the hearing; 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.5

1Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). 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.

3See 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

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

5In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].

1. 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.6 The applicant does not claim to meet any of the alternative criteria in clause 500.211 of the Regulations.

1. ‘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.7

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.8 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.9 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 at the outset of 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

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

7 Regulation 1.03 of the Regulations.

8 Section 10 of the ESOS Act.

9See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).

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.

1. 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.10 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.

1. 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

1. 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)).

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

1. The applicant gave evidence at hearing that he was enrolled. I indicated that his proposed study should have been completed by now and he said he did ‘not enough marks in previous ones so I have enrolled myself again and I am enrolled again’. I noted that he had not supplied a confirmation of enrolment and he said he would send it through.

1. A PRISMS check was undertaken in relation to the applicant during 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 an offer letter. I explained that this was not an enrolment. He then stated that he used to study but it was cancelled.

1. I explained that the question for determination before me had changed. The applicant again stated he had an offer letter which he could forward and submitted he had waited because of the hearing date. He said he could get an enrolment tomorrow. The applicant’s original application is now over three years old. The applicant’s application for review is also over fourteen months old. 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 requests for adjournment of a scheduled hearing will not be granted simply on the basis of

10 Schedule 5 to the Regulations.

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. With respect, the applicant’s request to provide necessary evidence the day after his hearing in order that he be given more time to comply with a mandatory requirement of the Act and Regulations when he is currently non-compliant is not persuasive. I did not consider further delay was appropriate in the circumstances.

1. The applicant’s representative then submitted that the applicant only recently completed his General English course (I note the course end date of 27 March 2023 in the confirmation of enrolment supplied to the Tribunal). These submissions prompted a review of the PRISMS record which shows that the applicant’s enrolment in that course was cancelled on 13 January 2023 for non-commencement of his course. I explained the relevance of this to the applicant and how it was adverse to his case in the sense that a submission about his recent course completion was inaccurate and invited the applicant to comment. The applicant gave evidence that he went to college, could not understand, could not find out and was going to tell them to give him more time, talk to the Tribunal and then move forward. His representative then submitted he was confused about the last English course which the applicant completed in March 2021 and his more recent enrolment which was due for completion in March 2023. I did not find this evidence or these submissions persuasive.

1. The applicant confirmed at hearing that he recalled the questionnaire which the Tribunal requested he complete in November 2022 and which he completed in December 2022 (‘the questionnaire’). He also gave evidence that he read the questionnaire when he completed it. 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.”

1. When the Tribunal wrote to the applicant by letter on 21 March 2023 inviting him to the hearing scheduled for 17 April 2023, 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 had received this document, that he completed the response to this hearing invite and read it as he did so.

1. The applicant has not supplied any COE or other document showing he is currently enrolled. The evidence is that the applicant does not hold a current COE.

1. Being enrolled is a mandatory requirement and the applicant does not satisfy that mandatory requirement. The applicant was unable to produce evidence of a current Confirmation of Enrolment at the hearing which would establish that they met the essential requirement under clause 500.211(a).

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

1. 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 was enrolled in a course of study and accordingly clause 500.211 of the Regulations is not met.

1. 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