Shrestha (Migration)

[2022] AATA 1517

Shrestha (Migration) [2022] AATA 1517 (31 March 2022)

DECISION RECORD

DIVISION:

Migration & Refugee Division

APPLICANT:

Sunil Shrestha

CASE NUMBER:

2118101

REPRESENTATIVE:

Shambhu Kadel (MARN: 1386072)

HOME AFFAIRS REFERENCE:

BCC2020/2609251

MEMBER:

Dr Jason Harkess

DATE:

31 March 2022

PLACE OF DECISION:

Melbourne

DECISION:

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

cls. 500.211 and 500.213 of Schedule 2 to the Migration Regulations 1994 (Cth).·

Statement made on 31 March 2022 at 4:09pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – IMMI 18/015 – Pearson Test of English Academic (PTE) – enrolment status – Confirmation of Enrolment (COE) – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.213

INTRODUCTION AND OVERVIEW

Visa Refusal – Application for Review

1. The Applicant is a citizen of Nepal and is 29 years old. He seeks review of a decision made by a delegate of the Minister refusing to grant him a student visa.

2. The Applicant applied for his visa on 9 November 2020. The visa application was refused by the delegate on 16 November 2021. The Applicant lodged his review application with the Tribunal on 2 December 2021. In these circumstances, the Tribunal has jurisdiction to conduct a review in relation to the delegate’s decision refusing the Applicant his visa.[1]

   [1] The relevant statutory provisions conferring jurisdiction on the Tribunal to conduct a review in this

Type of Visa

1. The specific type of visa the Applicant applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Student (Temporary) (Class TU) (Subclass 500) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’).

   [2] See Migration Regulations 1994 (Cth), Sch 1, cl 1222; Sch 2, cls 500.1 to 590.612.

2. If granted, a student visa permits a non-citizen to enter and remain in Australia to study full-time on a temporary basis. For the visa to be granted, the Applicant must meet the primary criteria set out in Part 500 of Schedule 2 of the Regulations.[3]

   [3] See Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

Reasons for Refusal

1. The student visa was initially refused in this case because the delegate found that the Applicant did not satisfy the primary criteria contained in cl 500.213 of Schedule 2 of the Regulations. The delegate was not satisfied that he met the English language requirements for this visa.

2. The delegate’s reasons are set out in a decision record. That decision record was provided to the Applicant when he was notified that his visa application had been refused.[4] The Applicant also provided a copy of that decision record to the Tribunal when he lodged his review application.

   [4] Notification was given in accordance with s 66 of the Migration Act 1958 (Cth) and reg 2.55 of the Migration Regulations 1994 (Cth) by emailing the notification and decision record to the Applicant’s last email address known to the Minister. By the operation of reg 2.55(8) of the Regulations, the Applicant is taken to have received the notification and decision record on the date that it was sent.

Issues for Determination

1. The ultimate issues for determination by the Tribunal are:

   a)whether the Applicant is currently enrolled in a course of study, as required by cl 500.211 of Sch 2 of the Regulations (this is known as the enrolment criterion); and

   b)whether the Applicant meets the English language requirements, as required by cl 500.213 of Sch 2 of the Regulations (this is known as the English proficiency criterion).

Determination of Application without Hearing

1. On 21 January 2022 the Tribunal wrote to the Applicant and informed him that it was in the process of conducting a review of his application and that, in order to assist the Tribunal in processing his review application, evidence that he met the English proficiency criterion was requested.[5] In this same letter, the Tribunal invited the Applicant to provide this information by 18 February 2022.

   [5] Request For Information – Generic, AAT Case File: 2118101, Document ID: 9211314.

2. On 8 February 2022 the Applicant submitted the following documents to the Tribunal:

   a)Certificate of Attainment – General English Pre-Intermediate (20 Weeks), issued on 13 April 2021[6];

   b)Confirmation of Enrolment – General English (BDF1DD80), issued on 13 October 2020[7]; and

   c)Language Testing Results Certificate – PTE Academic Score Report[8].

   [6] Evidence Supporting Claim – General English Completion Certificate, AAT Case File: 2118101, Document ID: 9414200.

   [7] Evidence Supporting Claim – CoE-General English - BDF1DD80, AAT Case File: 2118101, Document ID: 9414201.

   [8] Language Testing Results Certificate – PTE Score Report, AAT Case File: 2118101, Document ID: 9414197.

3. In addition, when the Tribunal came to prepare to consider the review application it also arranged for a check to be conducted on the Provider Registration and International Student Management System (‘PRISMS’) database in relation to the Applicant’s enrolment status and education history in Australia. That check was carried out by the Tribunal on 29 March 2022.

4. The PRISMS database revealed that, as at 29 March 2022, the Applicant was currently enrolled and studying a Certificate III in Commercial Cookery course. According to the PRISMS database, the Applicant is also approved to study a Certificate IV in Commercial Cookery course and a Diploma of Hospitality Management course. The PRISMS database also revealed that the Applicant had finished a General English course, consistent with the above-mentioned documents submitted by the Applicant on 8 February 2022.

5. By the operation of s 360(2)(a) of the Act, in circumstances where the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it, the Tribunal is not obliged to conduct a hearing.[9] The Tribunal has considered that it should decide the review in the Applicant’s favour in this case for reasons set out below. Accordingly, no hearing is necessary.

   [9] Singh v MIBP [2017] FCAFC 67

Tribunal’s Determination

1. For the following reasons, the Tribunal has determined that the delegate’s decision refusing to grant the Applicant a student visa ought to be remitted for reconsideration.

ENGLISH LANGUAGE REQUIREMENT

1. For the purposes of the application on review before the Tribunal, cl 500.213 of Schedule 2 to the Regulations sets out that, if required by the Minister, the applicant is to give evidence that they have a satisfactory level of English language proficiency. The relevant requirements for this clause are set out in the legislative instrument Migration (IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument 2018 (IMMI 18/015).[10]

   [10] Migration (IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument 2018 (Cth).

2. Section 6(1) of IMMI 18/015 specifies the requirements for the level of English language proficiency for the purposes of cl 500.213(1). In accordance with this section, the applicant must:

   a)Undertake one of the English language tests specified in Column 1 of Schedule 1;

   b)Achieve the English language test score specified for that English language test in Column 3 of Schedule 1; and

   c)Have completed the test within the following period:

   (i)If evidence of the test is provided at the time the applicant makes an application for a Subclass 500 (Student) visa – 2 years immediately before the date of the visa application; or

   (ii)If evidence of the test is not provided at the time the visa application is made – 2 years immediately before a decision to grant or refuse the visa application is made.

3. The Pearson Test of English (PTE) Academic is an approved English language test in line with item 4 of Schedule 1 of IMMI 18/015. As mentioned above the Applicant has provided to the Tribunal a copy of their PTE Academic Score Report displaying an overall result of 41 obtained from a test that occurred on 4 February 2022. This PTE Academic Score Report was also verified by the Tribunal on 22 February 2022. The Applicant also provided to the Tribunal evidence of their completion of study in a General English Pre-Intermediate (20 Weeks) course which occurred between 9 November 2020 and 9 April 2021. This was further supported by the Confirmation of Enrolment in this General English course submitted to the Tribunal by the Applicant on 8 February 2022, and verified against the PRISMS search conducted by the Tribunal on 29 March 2022. A Tribunal search on the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’) confirms that the Applicant’s completed General English course is a registered English Language Intensive Course for Overseas Students (ELICOS).

4. The Applicant’s submitted evidence as well as the Tribunal’s verifications of this submitted material illustrates that the Applicant satisfies item 4, paragraph (c) of Schedule 1 of IMMI 18/015.

5. The Applicant therefore meets the English proficiency criterion, as required by cl 500.213 of Sch 2 of the Regulations.

ENROLMENT CRITERION

1. For the purposes of the application on review before the Tribunal, cl 500.211 of Schedule 2 to the Regulations requires that a student visa application be founded on evidence of the applicant being enrolled in ‘a course of study’.[11]A ‘course of study’ is defined as ‘a full-time registered course of study.’ [12]A ‘registered course’ is one which is provided by an institution which has been registered under the Education Services for Overseas Students Act 2000 (Cth) (‘ESOS Act’) to provide that course to overseas students.

   [11] Migration Regulations 1994 (Cth), Sch 2, cl 500.211(a). The present case is not advanced on the basis that the Applicant satisfies any of the other criteria contained in cls 500.211(b), (c) and (d).

   [12] Migration Regulations 1994 (Cth), reg 1.03.

2. All registered courses and course providers are listed in the CRICOS, an online register kept in accordance with the requirements of the ESOS Act.[13] Details of courses listed in CRICOS are integrated into the PRISMS, a database maintained by the Australian government.[14] 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 will enter 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 cl 500.211 of Sch 2 of the Regulations.

   [13] Education Services for Overseas Students Act 2000 (Cth), s 10.

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

Importance of Current Enrolment

1. 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. 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. Secondly, it obliges the applicant to pay for the course. Thirdly, it obliges the applicant to 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 demonstrates a present and operating commitment on the part of the applicant to complete a course of study. It represents a tangible and immediate need for a student visa.

2. 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.[15] 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] Migration Regulations 1994 (Cth), Schedule 2, cl 500.611(1)(a); Schedule 8, Condition 8202(2)(a).

3. 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. Consideration of whether the primary criteria are met, as contained in cls 500.212 to 500.218, is premised on the enrolment criterion in clause 500.211 being met.

Applicant Currently Enrolled

1. The most recent record of the Applicant’s enrolment status in a registered course of study is that which was obtained from the PRISMS database on 29 March 2022, as referred to above. It indicates the Applicant is currently enrolled in a registered course of study as explained above.

Conclusion

1. Based on the material before the Tribunal, the Tribunal is satisfied that the Applicant is currently enrolled in a registered course of study for the purposes of cl 500.211 of Schedule 2 of the Regulations. The Tribunal is also satisfied that the Applicant meets the English language requirements, as required by cl 500.213 of Schedule 2 of the Regulations.

2. The Applicant meets the regulatory requirements for the grant of a student visa.

DECISION

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

   a)cls. 500.211 and 500.213 of Schedule 2 to the Migration Regulations 1994 (Cth).

Dr Jason Harkess
Member

case are set out in Divisions 2 and 3 of Part 5 of the Migration Act 1958 (Cth). There is no issue
arising as to those requirements not being met in this case.