Song (Migration)

[2021] AATA 4197

Song (Migration) [2021] AATA 4197 (19 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Zihan Song (‘First Applicant’)
Mr Lifan Sun (‘Second Applicant’)

CASE NUMBER:  2018606

DIBP REFERENCE(S):  BCC2018/2054351

MEMBER:Dr Jason Harkess

DATE:19 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the Applicants Student (Temporary) (Class TU) (Subclass 500) visas

Statement made on 19 August 2021 at 2:29pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit Court remittal – enrolment status – not enrolled in a course of study – genuine temporary entrant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 363
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Refusal – Application for Review

1. The Applicants are citizens of China. The First Applicant is 30 years of age. The Second Applicant is 33 years of age and is the spouse of the First Applicant. They seek review of decisions made by a delegate of the Minister for Home Affairs (‘the delegate’) refusing to grant them student visas.

2. The Applicants applied for their visas on 11 May 2018. The visa applications were refused by the delegate on 19 June 2018. The Applicants lodged their review application with the Tribunal on 10 July 2018.

3. If granted, a student visa permits a non-Australian citizen to enter and remain in Australia to study full-time on a temporary basis. An applicant’s family members may also join the application so that they too are issued with visas permitting them to stay in Australia for the duration of the main applicant’s studies.

4. The specific type of visa the Applicants applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Student (Temporary) (Class TU) (Subclass 500) visa. 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’).

5. In this case there are two applicants. The First Applicant is the main applicant. She seeks a student visa so that she can reside in Australia while undertaking a course of study. For the visa to be granted, she must meet the primary criteria set out in Part 500 of Schedule 2 of the Regulations.

6. The Second Applicant seeks a student visa as a member of the same family unit as the First Applicant. The grant of a student visa to a family member of the main applicant is contingent on both the main applicant meeting the primary criteria and the family member meeting the secondary criteria.  For a family member to have any prospect of a successful visa outcome, the main applicant first needs to receive a favourable outcome in relation to their application. If the main applicant’s case fails, so too must any connected family member’s application.

Procedural History

Delegate’s Primary Decision

1. The delegate refused the visa on the basis that the First Applicant was found not to meet the criteria contained in cl 500.212 of Schedule 2 of the Regulations (‘the genuine applicant criterion’).

2. The delegate’s reasons are set out in a decision record. A copy of that decision record was provided to the Applicants upon being notified that their visa applications had been refused. The Applicants provided a copy of the delegate’s decision record to the Tribunal when they lodged their review application.

Tribunal’s Determination of Review Application in Case Number 1820011

1. The Applicants applied for review of the delegate’s decision to the Tribunal and it was assigned Case Number 1820011 (‘the original Tribunal’). The original Tribunal determined the review application by hearing on 24 April 2020. The original Tribunal made an oral decision with oral reasons and affirmed the decisions not to grant the Applicants student visas.

FCCA’s Determination of Judicial Review Application

1. The Applicants subsequently applied for judicial review of the original Tribunal’s decision in Case Number 1820011 to the Federal Circuit Court of Australia (‘the FCCA’). There was no hearing in the FCCA because the Minister conceded the original Tribunal had made a jurisdictional error. Specifically, it was found that the original Tribunal failed to consider whether to exercise its power under s 363(1)(b) of the Migration Act 1958 (Cth) (‘the Act’) to adjourn the hearing so that the First Applicant could provide a confirmation of enrolment.

2. The FCCA invalidated the original Tribunal’s determination and remitted the case for reconsideration on 10 December 2020. The case was subsequently reconstituted and assigned Case Number 2018606.

Issues for Determination

1. The primary decision of the delegate now comes before the Tribunal to be reviewed again. The newly constituted Tribunal notes that its essential function remains largely unaffected by the fact that the review application has been considered by the original Tribunal on an earlier occasion.

2. The ultimate issues for determination by the Tribunal following a further hearing of the review application remain the same. In this case, those issues that arise for consideration and determination by the Tribunal are as follows:

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

   (b)whether the First Applicant is a genuine applicant for entry and stay as a student in Australia, as required by the genuine applicant criterion.

CONSIDERATION OF CASE

1. Clause 500.211 requires that a student visa application be founded on evidence of the applicant being enrolled in ‘a course of study’.[1] A ‘course of study’ is defined as ‘a full-time registered course of study.’[2] 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.[3]

   [1] 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).

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

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

2. 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.[4] 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.[5] 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

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

   [5] 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).

3. As the newly constituted Tribunal came to prepare for reconsidering the Applicants’ case, the Tribunal conducted a check of the PRISMS database to ascertain whether the First Applicant was enrolled a course to ascertain whether she was likely to meet the enrolment criterion. A search of the PRISMS database conducted on 8 July 2021 revealed that the First Applicant was not enrolled in any registered course.

4. By letter dated 4 August 2021, the Tribunal wrote to the Applicants pursuant to s 359A of the Act. Among other things, that letter advised the First Applicant of the following:

   (a)A PRISMS database search showed, as at 8 July 2021, that she was not currently enrolled in any registered course of study.

   (b)The enrolment criterion is a ‘time of decision’ criterion which means that she must be currently enrolled in a registered course of study to be eligible to be granted a student visa at the time the Tribunal makes its decision.

   (c)If the Tribunal were to rely on the PRISMS database search, showing the Applicant is not currently enrolled, the Tribunal may form the view that the determinative issue is now whether the First Applicant meets the enrolment criterion.

5. The Applicants were invited to comment on the information and provide any response to the Tribunal in writing by 18 August 2021.

6. The Tribunal did not receive any substantive response from the Applicants relating to the issue of the First Applicant’s enrolment status by 18 August 2021. No request for an extension of time to provide a response has been received by the Tribunal. As at the date of this decision, the Tribunal has received no evidence demonstrating that the First Applicant is enrolled in a registered course of study.

7. By the operation of s 359C and 360 of the Act, in circumstances where the Tribunal has invited the Applicants to provide information pursuant to s 359A, and the Applicants have failed to do so within the prescribed period, the Tribunal may proceed to determine the review application without taking any further action to obtain the Applicants’ views on the information. The Tribunal has decided to determine this application having regard to all the information before it.

8. Producing evidence of a current enrolment is a critical first step towards obtaining a student visa. Such evidence shows that a student visa 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 represents a present and operating commitment by the applicant to complete a course of study. It demonstrates a tangible and immediate need for a student visa.

9. 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.[6] 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.

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

10. The Tribunal must therefore be presented with evidence that shows the First Applicant is currently enrolled in a registered course of study. Absent such evidence, a student visa cannot sensibly be granted. Indeed, consideration of whether the primary criteria are met, as contained in cls 500.212 to 500.218, is premised on the enrolment criterion in cl 500.211 being met. If cl 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.

11. The PRISMS report indicates that the First Applicant is not currently enrolled in a registered course of study. The Applicants have not taken any steps to persuade the Tribunal otherwise.

12. While the determinative issue for the delegate was whether the First Applicant met the genuine applicant criterion, the Tribunal has concluded that the decision under review ought to be affirmed in this case because the First Applicant does not meet the enrolment criterion

13. The Tribunal finds that the First Applicant does not meet the criteria contained in cl 500.211 because she is not currently enrolled in a registered course of study.

GENUINE APPLICANT CRITERION

1. In the circumstances, the question of whether the First Applicant meets the criteria under clause 500.211 has become determinative for the purposes of the outcome of the case now before the Tribunal. If the First Applicant does not meet the criteria under clause 500.211, there is no administrative utility in the Tribunal proceeding to consider whether the genuine applicant criterion is met under cl 500.212.

SUMMARY

1. The First Applicant does not meet the regulatory requirements for the grant of a student visa because the Tribunal is not satisfied that the First Applicant meets any of the criteria contained in cl 500.211. Because the First Applicant fails to meet the primary criteria, the Second Applicant’s case must also fail.

DECISION

1. The Tribunal affirms the decisions not to grant the Applicants Student (Temporary) (Class TU) (Subclass 500) visas.

Dr Jason Harkess
Member