Shrestha (Migration)

[2021] AATA 2233

Shrestha (Migration) [2021] AATA 2233 (9 July 2021)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Pratikshya Shrestha

CASE NUMBER:  1922447

DIBP REFERENCE(S):  BCC2019/3137014

MEMBER:Deputy President J.L Redfern PSM

DATE OF DECISION:  9 July 2021

DATE CORRIGENDUM

SIGNED:12 July 2021

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

In paragraph 17, “s.359C(2)” should be replaced with “s.359C(1)”, so that the decision reads as follows:

“17…However, s.360(2) of the Act provides exceptions to this requirement if the Tribunal decides it can make a favourable decision on the material before it, the applicant consents to the review without appearing or, relevant to the facts of this case, s.359C(1) of the Act applies…”

J.L Redfern PSM
Deputy President

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Pratikshya Shrestha

CASE NUMBER:  1922447

HOME AFFAIRS REFERENCE(S):          BCC2019/3137014

MEMBER:Deputy President J.L Redfern PSM

DATE:9 July 2021

PLACE OF DECISION:  Sydney

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

Statement made on 9 July 2021 at 5:20 PM

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – whether the applicant meets the criteria for enrolment and the genuine temporary entrant criterion – applicant invited to provide information under s.359(2) of the Act – loss of entitlement to a hearing – PRISMS search – notice issued under s.359A of the Act – no response received – applicant found to not be enrolled in a course of study – decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth), ss. 65, 359, 359A, 359C, 360, 363A, 379A and 499
Migration Regulations 1994 (Cth), Sch 2 cl.500.2

CASES

Bala v Minister for Immigration and Border Protection [2019] FCA 600
Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40
Singh v Minister for Immigration & Anor [2018] FCCA 3423

SECONDARY MATERIALS

Minister for Immigration and Border Protection, Direction No. 69, 18 April 2016
President’s Direction, Conducting Migration and Refugee Reviews, 1 August 2018

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 August 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. I affirm the decision under review. My reasons follow.

   BACKGROUND AND RELEVANT LAW

3. The applicant is a 34-year-old national from Nepal. She applied for a student visa on 21 June 2019. In her application for the visa, the applicant stated that she had visited family in Australia in 2018 on a visitor visa and returned in April 2019, again on a visitor visa, and decided to study in Australia with an education provider in Brisbane. In support of her application, the applicant stated that she wanted to develop her English skills. She had experience as a therapist and yoga teacher but was interested in developing her cooking skills so that when she returned to Nepal, she could merge her various skills by promoting a Mindfulness and Meditation Dinner. The applicant stated that she planned to study one year of general English, Certificate IV in Commercial Cookery and then a Diploma of Hospitality Management.

4. 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.

5. For the visa to be granted, the applicant is required to meet the primary criteria set out in clause 500.2 of Schedule 2 to the Migration Regulations 1994 (the Regulations). These criteria include requirements relating to enrolment (cl.500.211), access to funds and financial capacity (cl.500.214) and being a genuine applicant for entry and stay as a student (cl.500.212). All criteria must be satisfied at the time a decision is made on the application. The applicant must also satisfy health insurance and public interest criteria and, if required by the Minister, to satisfy specified English proficiency requirements.[1]

   [1] Clauses 500.215, 500.213 and 500.217 respectively of Schedule 2 to the Regulations.

6. Clause 500.211 provides that an applicant must meet one of the alternative grounds contained in the clause, including the requirement to be enrolled in a ‘course of study’ which is defined in cl. 500.111 to mean, amongst other things, study in a full-time ‘registered course'. A ‘registered course’ means 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 (reg 1.03 of the Regulations).

7. Clause 500.212 requires that the applicant be a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily[2] and intends to comply with any condition this subject to which the visa is granted.[3] There is a further requirement that the applicant meet any other relevant matter.[4] There are no other relevant matters prescribed and this is a broad provision which allows the decision-maker to have regard to other relevant factors that might indicate the applicant is not a genuine student. Departmental guidelines, which are not binding but instructive, state that the decision-maker should only refuse to grant a visa under cl.500.212(c) if the applicant satisfies all other Schedule 2 criteria, including the genuine temporary entrant criterion.

   [2] Clause 500.212(a) of Schedule 2 to the Regulations.

   [3] Clause 500.212(b) of Schedule 2 to the Regulations.

   [4] Clause 500.212(c) of Schedule 2 to the Regulations.

8. In considering whether an applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires a decision-maker, including the Tribunal, to have regard to a number of specified factors, although it is important to note that the Direction indicates it should not be used as a ‘checklist’, but rather the matters it lists are intended to guide decision makers when considering the applicant’s circumstances as a whole and reaching a finding about whether they satisfy the genuine temporary entrant criterion.[5] This was confirmed in Nguyen v MIBP [2013] FCCA 1864 and more recently in Singh v MIBP [2018] FCCA 3423 where the Court found that the previous direction, which included a similar provision as contained in Direction No. 69, is not intended to be construed as a checklist but the factors are all matters for the decision-maker ‘to think about and weigh up’.[6] The Federal Court provided further helpful guidance on this issue in Bala v MIBP [2019] FCA 600 where the Court found that, even though the Tribunal decision did not specifically refer to certain factors included in the direction, it did not follow that those factors were not considered and in the circumstances of the case:

   .. it is reasonable to infer that matters not mentioned were considered, though not sufficiently germane to the Tribunal’s decision to warrant express mention, separately or collectively.[7]

   [5] Direction No 69, Part 2 at [1].

   [6] Singh v MIBP [2018] FCCA 3423 at [17] and [18].

   [7] Bala v MIBP [2019] FCA 600 at [17]–[18].

9. Clause 500.214 provides that an applicant for a student visa must have genuine access to funds of the kind specified and, if requested, an applicant must provide evidence of financial capacity that satisfies the requirements specified in an instrument.[8]

   [8] Refer subclauses 500.214(2) and (3). The relevant instrument is Evidence of Financial Capacity for Subclass 500 (Student) Visas and Subclass 590 (Student Guardian) Visas.

10. In this case, 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 Regulations because he was not satisfied the applicant was a genuine applicant for entry and stay as a student. The delegate referred to this as the ‘genuine temporary entrant criterion’. The grounds for the refusal are set out in the delegate’s written decision record dated 6 August 2019. The delegate did not consider any other requirements for the visa.

11. On 13 August 2019, the applicant applied to the Tribunal for review of this decision and attached the decision record to her application for review together with the documents provided to the Department. She also provided copies of certificates of enrolment for Macallan College Pty Limited for English, Certificate IV Commercial Cookery and the Diploma of Hospitality Management, which was subject to her completing the Commercial Cookery course. The review was lodged by migration agent, Santosh Kunwar of the Sydney Business House, on the applicant’s behalf.

12. On 12 March 2021 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting her to provide specified information in writing to satisfy the Tribunal that she met the requirements of both cls.500.211 (enrolment) and 500.212 (genuine temporary stay and entry).

13. Even though the delegate made his decision on the grounds that the applicant did not meet the requirements of cl.500.212(a) and did not mention cl.500.211, he found that the application for the visa was valid. Enrolment is a requirement for a valid application, as outlined below, and by implication the delegate must have been satisfied that the applicant was enrolled in a course of study at the time the application was filed. The evidence provided by the applicant with her application for the visa, which was also provided to the Tribunal, confirmed that this was the case. While the Tribunal will generally confine its review to the issue which was the subject of the refusal,[9] this is not always the case, particularly when other relevant issues emerge between the time of the delegate’s decision and the time of the review.

    [9] President’s Direction, Conducting Migration and Refugee Reviews (1 August 2018), 8.2.

14. The Tribunal sought information about whether the applicant was enrolled in a course of study at the time of the review because this requirement is an essential criterion for student visas. While the other criteria are also important and ultimately must be satisfied before the visa can be granted, enrolment is fundamental to the purpose for the visa and is a requirement that must be satisfied at various stages of the visa application process. Relevantly, enrolment requirements must be satisfied for an applicant to make a valid application,[10] enrolment requirements must be satisfied at the time of decision to be granted a student visa, as provided by cl.500.211, and visa holders must maintain enrolment in a registered course as a condition of their visa.[11]

    [10] Refer item 1222(3)(c) of Schedule 1 to the Regulations and the relevant instrument, Evidence of Intended Course of Study, which provides that the applicant must provide confirmation of enrolment for each of the applicant’s intended courses of study.

    [11] Condition 8202 relevantly provides that the holder of the visa must be enrolled in a full-time course of study.

15. The invitation to provide information was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by the prescribed period, being 26 March 2021, 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 applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

16. There was no response to this letter by the applicant or by her migration agent.

17. Under s.360 of the Act, the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments. However, s.360(2) of the Act provides exceptions to this requirement if the Tribunal decides it can make a favourable decision on the material before it, the applicant consents to the review without appearing or, relevant to the facts of this case, s.359C(2) of the Act applies. Section 359C of the Act provides that if a person is invited in writing under s.359 of the Act to give information and does not give that information before the time for giving it has passed, the Tribunal may make a decision on the review, without taking any further action to obtain the information. Subsection 360(3) of the Act provides that if any of the paragraphs in s.360(2) of this section apply the 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.[12]

    [12]Hasran v MIAC [2010] FCAFC 40.

18. For the exception to the hearing requirement to apply, the invitation must comply with the applicable statutory notification requirements. Section 379A provides that the Tribunal is required to give a document to the person receiving the document (recipient) by giving the document by hand, dispatching a document by prepaid post or transmission by fax or email to the address provided to the Tribunal by the recipient in connection with the review.

19. I am satisfied that the applicant was served with the invitation under s.359 of the Act because an electronic copy of the invitation was sent by the email on the same date of the letter and it was sent to the address of the applicant’s representative which was specified on the application for review form that was lodged with the Tribunal. No error message indicating that the email was not successfully transmitted was received by the Tribunal.

20. Having undertaken the appropriate searches of the file and the electronic case management system, I am satisfied that no information or submissions were provided by either the applicant or on his behalf by her representative within the prescribed period, namely 26 March 2021, nor was an extension of time was requested within this period. Nor is there is no notification from the applicant about a change of representative.

21. Having regard to the legislative provisions and the failure of the applicant to respond within the prescribed period, I find that the applicant is no longer entitled to a hearing. I have therefore determined to proceed under s.359C of the Act.

22. Because there was no information about whether the applicant was currently enrolled in a course of study, and therefore whether she satisfied cl.500.211, the Tribunal caused a search of PRISMS, being the Provider Registration and International Student Management System register, to be undertaken on 28 May 2021. The purpose of this search was to ascertain whether the applicant was enrolled in a registered course.

23. 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 Education Services for Overseas Students Act 2000. 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.

24. 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, I accept 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.

25. The PRISMS search reveals that the applicant did not hold a current confirmation of enrolment in a registered course as at 28 May 2021, being the date of the search.

26. By letter dated 31 May 2021, the Tribunal wrote to the applicant pursuant to s.359A of the Act, advising her about the results of the PRISMS search and inviting her to comment on or respond to this information by 15 June 2021. Relevantly, the invitation stated that if the Tribunal relied on this information it may find that the applicant was not currently enrolled in a course of study, which would mean the applicant did not meet cl.500.211 of Schedule 2 to the Regulations. It is further recorded in the letter that the consequence of the Tribunal relying on the information in the PRISMS search that the applicant was not enrolled in a course of study and therefore did not meet cl.500.211, would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant the applicant’s student visa.

27. There has been no response to this invitation, either by Santosh Kunwar or directly from the applicant. The Tribunal has not been notified that the agent has ceased to act or that the address for service of notices has changed.

28. In the absence of any response, I have decided to proceed to determine the review on the basis of the material provided by the applicant to the Department and to the Tribunal and the results of the PRISMS search.

    CONSIDERATION OF CLAIMS AND EVIDENCE

29. In this case the applicant does not claim to meet any of the alternative criteria in cl.500.211. As such, the issues for determination in this case are:

    (1)Whether at the time of this decision, the applicant is enrolled in a course of study such that cl.500.211 is met, and

    (2)If so, whether the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212(a).

30. The PRISMS search dated 28 May 2021 reveals that the applicant has enrolled in three courses since 2019 all of which were cancelled on 21 December 2019. The first enrolment was in the general English course which was due to commence on 1 July 2019 and finish on 23 August 2020. It is noted that on 21 December 2019 the applicant notified of the cessation of studies in this course, which is recorded as ‘cancelled’. The second course was the Certificate IV in Commercial Cookery which was due to commence on 5 October 2020 and finish on 3 April 2022. It is recorded that on 21 December 2019 course was cancelled because of the ‘non-commencement of studies’. The third course referred to in PRISMS is the Diploma of Hospitality Management, which is recorded as commencing on 2 May 2022 and finishing on 30 October 2022. It is recorded that this course was cancelled on 21 December 2019 because of the ‘non-commencement of studies’. This suggests that the Certificate IV course was a precondition for the Diploma.

31. In summary, the PRISMS search reveals the applicant is not currently enrolled in a course and failed to complete any course. The results of this search the applicant was not enrolled were disclosed to the applicant and she was invited to comment or respond to this by letter dated 31 May 2021. She did not do so by the nominated date or at all.

32. There is no evidence before me to suggest that the PRISMS record is incorrect and that the applicant is currently enrolled in a course of study. Ultimately, it is for the applicant to satisfy the Tribunal that she meets the relevant criteria. The Tribunal has raised with her the critical issues in respect of which it required information and evidence. The applicant was given two opportunities to provide this information but has not done so. Apart from filing her application for review nearly two years ago, the applicant has not provided any further material or otherwise engaged with the review. Based on the material before me, I am therefore not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly I find that cl.500.211 is not met.

1. The applicant does not meet cl.500.211 and it is therefore unnecessary for me to consider whether she meets the requirements of cl.500.212 to determine this review. This is because, even if I was satisfied she is a genuine applicant for entry and stay as a student, which may be impacted by any findings about the failure to be enrolled, she cannot meet the requirements of the visa under Part 500.2 of Schedule 2 to the Regulations.

2. 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

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

   J.L Redfern PSM
   Deputy President