Singh (Migration)

[2023] AATA 1434

Singh (Migration) [2023] AATA 1434 (16 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kewal Singh

REPRESENTATIVE:  Mrs Kamlesh Singh (MARN: 9682717)

CASE NUMBER:  2212319

HOME AFFAIRS REFERENCE(S):          BCC2020/1187077

MEMBER:T. Quinn

DATE:16 May 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 16 May 2023 at 9:49am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – enrolment status – not enrolled in a course of study – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 16 March 2020, the applicant applied for a Student visa[1] to undertake study in Australia (‘the application’).[2]

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

   [2]At 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.

2. On 3 August 2022, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant had not provided a level of English language proficiency that meets the requirements of the specified instrument in relation to student visas.[3]

   [3]See clause 500.213 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants produce particular evidence of English proficiency in certain circumstances. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

3. On 23 August 2022, the applicant applied to this Tribunal for a review of the delegate’s decision.[4]

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

4. The applicant appeared before the Tribunal to give evidence and present arguments in a telephone hearing on 1 May 2023.  The applicant was assisted in relation to the review, but his representative did not attend the hearing on 16 May 2023.

5. 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.

6. 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.

7. 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]

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

8. For the following reasons, the decision is affirmed. 

   STATUTORY FRAMEWORK

9. 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)

10. 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.

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

11. ‘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 Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[7]

    [7]Regulation 1.03 of the Regulations.

12. 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.

    [8]Section 10 of the ESOS Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. While the determinative issue before the delegate was whether the applicant met the English language requirements under clause 500.213 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

14. 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 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.

15. 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.

    [10]Schedule 5 to the Regulations.

16. 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.

    Notice that clause 500.211 was not met

17. The Tribunal undertook a PRISMS search on 1 May 2023 which indicated the applicant is not enrolled in any courses. 

18. On 1 May 2023, the Tribunal wrote to the applicant, pursuant to section 359A of the Act, explaining the contents of the PRISMS search, its relevance to his case and indicating that the information in the PRISMS search could be relied upon as the reason or part of the reason for the Tribunal affirming the decision in his case. The Tribunal invited the applicant to comment or respond to this information.

19. On 15 May 2023, the applicant filed several submissions, including a letter of offer for a new course but these did not include a confirmation of enrolment.  They included certificates of completion for courses the applicant has undertaken, and I commend him in this regard.

    THE HEARING

20. The applicant gave evidence at hearing that he was not enrolled. 

21. The Tribunal undertook a PRISMS search during the hearing on 16 May 2023 which provides identical information to the search of 1 May 2023, including the fact that the applicant remains un-enrolled at the time of this decision.  At hearing, I reminded the applicant about the letter the Tribunal had sent on 1 May 2023 and explained what a PRISMS search was.  I explained that the PRISMS search for the applicant indicated the applicant was not enrolled and gave the applicant an opportunity to respond.  The applicant said that he had an offer letter and would get his enrolment next week.  I explained that this did not solve the problem of him not being enrolled at the time of his hearing. 

22. I explained that the question for determination before me had changed from whether he met the English language requirements to whether he met the enrolment requirements. The applicant indicated he understood and repeated that he would get his enrolment next week. 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 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. Allowing more time for the applicant to comply with a mandatory requirement of the Act and Regulations when he is currently non-compliant and was put on notice of this non-compliance over two weeks ago is not appropriate.

23. 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.

24. 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).

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

26. 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

27. 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.

28. 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

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

    T. Quinn
    Member