Tamrakar (Migration)

[2022] AATA 2934

Tamrakar (Migration) [2022] AATA 2934 (12 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kushal Tamrakar

REPRESENTATIVE:  Ms Mina Madani (MARN: 1798674)

CASE NUMBER:  2113976

HOME AFFAIRS REFERENCE(S):          BCC2020/2714362

MEMBER:Joseph Francis

DATE:12 August 2022

PLACE OF DECISION:  Perth

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

Statement made on 12 August 2022 at 3:07pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no current enrolment in registered course – no response to tribunal’s invitations to provide information and comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359A
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.111, 500.211(a), 500.212(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 21 September 2021 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 26 November 2020. 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 visa on 21 September 2021 on the basis that the applicant did not satisfy the requirements of cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they were not satisfied the applicant was a genuine temporary entrant to Australia. For the reasons explained below, the issue now before the Tribunal is whether the applicant is enrolled in a course of study as required by cl 500.211(a).

4. On 11 October 2021 the applicant lodged an appeal to the Tribunal and attached the decision of the Department.

5. On 2 December 2021 the Tribunal wrote to the applicant a s.359(2) letter as follows:

   • As you applied for the visa on the basis of undertaking a course of study in Australia,

   it is a requirement of the visa for you to be:

   • enrolled in a registered course of study; and
   • a genuine applicant for entry and stay as a student.

   Accordingly, you will need to provide sufficient information to satisfy us that you meet both of
   these visa requirements and you are now invited to give, in writing, all relevant information
   about the course(s) of study you are undertaking and your entry and stay in Australia as a
   student. Specific details about the information requested is set out in the Request for
   Student Visa Information form which you can access by clicking on the link below.

6. The Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student the Tribunal must have regard to ‘Ministerial Direction No.69‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ and attached a copy.

7. The letter also noted the following:

   • If we do not receive the information within the period allowed or as extended, we may

   make a decision on the review without taking any further action to obtain the
   information. You will also lose any entitlement you might otherwise have had under
   the Migration Act 1958 to appear before us to give evidence and present arguments.

8. The applicant was given until 16 December 2021 to provide the information requested.

9. The applicant appointed a new representative on 21 December 2021 yet provided no information with regard to current enrolment.

10. Because there was no information provided about whether the applicant was currently enrolled in a course of study, and therefore whether he satisfied cl.500.211, the Tribunal caused a search of PRISMS, being the Provider Registration and International Student Management System register, to be undertaken. The purpose of this search was to ascertain whether the first named applicant was enrolled in a registered course.

11. 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.

12. 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.

13. The PRISMS search revealed that the applicant did not hold a current confirmation of enrolment in a registered course as at 18 February 2022, being the date of the search.

14. On 10 March 2022 the Tribunal sent the following in a s.359A letter to the applicant:

    ·In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    ·Please note, however, that we have not made up our mind about the information.

    ·The particulars of the information are:

    ·A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that you do not hold a current Confirmation of Enrolment in a course of study.

    ·This information is relevant to the review because you have applied for a Student visa and it is a requirement for the grant of a Student visa that you are enrolled in a course of study at the time of decision (clause 500.211). A course of study is defined as a fulltime registered course. There are limited exceptions to this requirement which do not appear to be relevant to your review (such as where you are a Foreign Affairs, Defence or secondary exchange student).

    ·If we rely on this information in making our decision, we may find that you are not currently enrolled in a course of study. This would mean that you do not meet clause 500.211. The consequence of the Tribunal relying on this information is that it would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant you a Student visa.

15. The applicant was given until 24 March 2022 to comment on or respond to the information.

16. At the time of this decision, no reply or correspondence has been received by the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. On 2 December 2021 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about their enrolment in a course of study and matters pertaining to the genuine temporary entrant criteria in writing. The invitation was sent to the applicant and advised that, if the information was not provided in writing by the prescribed period the applicant was granted until 16 December 2021 to reply, informing the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The applicant did not respond to this request for information to provide a current certificate of enrolment.

18. The Tribunal is of the view the applicant did not provide the information requested in the s.359(2) letter within the prescribed period and within the time granted after the extension of time was requested. In these circumstances, s.359C 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.

19. On 10 March 2022, the Tribunal wrote to the applicant a s.359A letter inviting him to comment or respond to information from the PRISMS record that indicates he is not currently enrolled in a course of study.

20. 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 before the delegate was whether the applicant met the criterion in cl.500.212, however as raised with the applicant another matter before the Tribunal is whether they meet cl.500.211.

21. 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.

22. ‘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 (Cth), to provide the course to overseas students.

23. The Tribunal raised with the applicant the requirement of enrolment for the grant of a student visa and referred to cl. 500.211 in the recent s.359A letter.

24. Information obtained from the PRISMS record, raised with the applicant via s.359A in the Tribunal’s letter dated 10 March 2022, indicates they are not currently enrolled in a course of study. There is no evidence before the Tribunal to suggest that the PRISMS record is incorrect. No evidence has been provided or new information that the applicant is currently enrolled in a course of study.

25. The Tribunal is of the view that the letter dated 10 March 2022 clearly outlines the issue before them, being non enrolment in a course of study and the consequence of not being enrolled. In particular the letter notes:

    ·If we rely on this information in making our decision, we may find that you are not currently enrolled in a course of study. This would mean that you do not meet clause 500.211. The consequence of the Tribunal relying on this information is that it would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant you a Student visa.

26. Therefore, on the evidence before it, 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.

27. 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

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

    Joseph Francis
    Member