1615710 (Migration)

[2016] AATA 4767

1615710 (Migration) [2016] AATA 4767 (5 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JUNXIAN XIE

CASE NUMBER:  1615710

DIBP REFERENCE(S):  BCC2016/1107966

MEMBER:Karen Synon

DATE:5 December 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for consideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

·cl.573.222 of Schedule 2 to the Regulations.

Statement made on 05 December 2016 at 1:07pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 573 – cl 573.222 – Enrolment in an acceptable course of study – Bachelor of Business course – CoE presented

LEGISLATION

Migration Act 1958, ss 65, 360 (2)(a)
Migration Regulations 1994

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 Immigration on 5 September 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 March 2016 to undertake study in Australia.  At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses.  Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575), or whether the applicant has the support of the relevant Minister (Subclass 576).

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.573.222 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not enrolled in an acceptable course of study.

4. The applicant applied for review of the primary decision on 26 September 2016 and provided a copy of the department’s decision to the Tribunal.

5. The applicant was represented in relation to the review by his registered migration agent.

6. In accordance with s.360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant's favour on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear before the Tribunal to give evidence in relation to the decision under review.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The delegate's decision records that the applicant, with his visa application, provided a evidence of his enrolment in a Bachelor of Games Design and Development at Deakin University.  However, this CoE was cancelled on 25 August 2016.

9. On review the applicant has provided evidence of his enrolment in a Bachelor Business in the form of a new CoE for a Bachelor of Business course.  PRISMS records confirm this course has not been cancelled and indicates that the applicant is currently studying this course.

10. The Tribunal finds the applicant has given a current CoE relating to the applicant undertaking an acceptable course of study. For these reasons cl.573.222 is met.

    DECISION

11. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

    ·cl.573.222 of Schedule 2 to the Regulations.

    Karen Synon
    Member