Richard Gajanayakage (Migration)

[2024] AATA 664

Richard Gajanayakage (Migration) [2024] AATA 664 (22 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Dilki Hasangi Gajanayake Richard Gajanayakage

REPRESENTATIVE:  Mr M Shamraiz Mehdi (MARN: 1465452)

CASE NUMBER:  2318275

HOME AFFAIRS REFERENCE(S):          BCC2022/1027471

MEMBER:Frank Russo

DATE:22 March 2024

PLACE OF DECISION:  Sydney

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

Statement made on 22 March 2024 at 11:18am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – no current enrolment – most recent enrolment cancelled because of non-payment of fees – no response to invitation to comment and loss of entitlement to hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C(2), 360(3), 363A

Migration Regulations 1994 (Cth), Schedule 2, cl 500.211(a)

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 23 October 2023 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 14 March 2022. 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 visas on the basis that the applicant did not satisfy the requirements of cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because there was no evidence that the applicant was currently enrolled in a registered course of study.

4. The applicant is a 28-year-old Sri Lankan national.

5. The applicant was assisted in relation to the review by her registered migration agent.

6. On 31 January 2024, the Tribunal invited the applicant to attend a hearing by telephone on 23 February 2024 to give evidence and present arguments relating to the issues arising in her case. On 18 February 2023, the applicant requested postponement of the hearing to a date in March 2024 on the basis that she was unable to attend the hearing because her employer had not allowed her to take the day off.

7. On 19 February 2024, the Tribunal notified the applicant that it had agreed to the request to postpone the hearing and accordingly cancelled the hearing date.

8. On 7 March 2024, 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 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 applicant did not hold a current Confirmation of Enrolment (CoE) in a registered course of study.

9. On 7 March 2024, the Tribunal wrote to the review applicant pursuant to s 359A of the Act, inviting her 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 applicant’s PRISMS record showed that she did not hold a current CoE, which may lead the Tribunal to conclude that she was not currently enrolled in a registered course of study and did not meet cl 500.211(a).

10. The Tribunal notes for the sake of completeness that a s.359A letter in the same terms was sent to the applicant on 21 February 2024, however, the Tribunal does not rely on this earlier letter because the period for comment or response specified in that letter was not correct.

11. The Tribunal advised in its letter of 7 March 2024, that if it did not receive the applicant’s comments or response by 21 March 2024, or by such time as extended by the Tribunal, the Tribunal may make a decision on the review without taking any further action to obtain her views on the information and she would also lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

12. The applicant did not respond to the Tribunal’s s.359A letter of 7 March 2024 and has not provided her comments or response. No extension of time was requested.

13. Under s.359C(2) of the Act, if an applicant is invited under s.359A of the Act to comment or respond to information and does not give the comments or response before the time for giving them has passed, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

14. In these circumstances, s.359C(2) of the Act 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. Accordingly, the Tribunal has decided to proceed to a decision without taking further steps to obtain the applicant’s views on the information.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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)

17. 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.

18. ‘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.

19. 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.

20. 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.

21. The delegate’s decision, a copy of which was provided by the applicant with her application for review, indicates that on 12 September 2023 the Department wrote to the applicant to advise that the confirmation of enrolment (CoE) she had provided for the Diploma of Hospitality Management with her visa application, was no longer valid as it was cancelled by her education provider on 28 August 2023. The applicant was given 28 days to submit a valid CoE or to withdraw her Student visa application, but did not respond to the Department’s request.

22. On 16 November 2023, the Tribunal wrote to the applicant to request that she provide a copy of a current CoE by 30 November 2023. The applicant did not respond to this request and has not subsequently provided a CoE.

23. The applicant was also advised in the hearing invitation sent by the Tribunal on 31 January 2024, that she would need to provide a copy of a current CoE or other documents that show she is currently enrolled in a course of study, at least 7 days before the hearing date, which had been scheduled for 23 February 2024. On 19 February 2024 the applicant requested postponement of the hearing, which was granted by the Tribunal. The applicant did not otherwise provide a CoE or other evidence that she is currently enrolled in a course of study.

24. A check of the applicant’s enrolment records within PRISMS on 7 March 2024 indicates that the applicant most recently held an enrolment in the Diploma of Hospitality Management, which was cancelled on 28 August 2023 due to non-payment of fees. Her PRISMS record indicates that as 7 March 2024 she had not enrolled in any further courses of study.

25. As noted above, the applicant was invited on 7 March 2024 to respond to the particulars of information from her PRISMS record. The applicant was advised that a recent check of PRISMS indicates that she does not hold a current CoE in a course of study. She was advised that this information is relevant because it is a requirement for the grant of the Student visa that she be enrolled in a course of study at the time of the decision (cl 500.211). The applicant was advised of the consequences of the Tribunal relying upon this information and given until 21 March 2024 to provide comments or respond to the information in writing. The applicant did not respond to the Tribunal’s invitation.

26. The Tribunal again checked the applicant’s PRISMS record on 22 March 2024, the date of this decision. This confirmed that there have been no changes to the applicant’s enrolment information as registered in her PRISMS record on 7 March 2024. The applicant has provided no evidence of a current enrolment or of any offer of enrolment, and in the absence of such evidence, the Tribunal accepts the applicant’s PRISMS record. There is therefore no evidence before the Tribunal that the applicant is currently enrolled in any approved course of study.

27. 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

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

    Frank Russo
    Member