Akram (Migration)

[2022] AATA 1751

Akram (Migration) [2022] AATA 1751 (11 April 2022)

DECISION RECORD

DIVISION:

Migration & Refugee Division

APPLICANT:

REPRESENTATIVE:

Mr Shahryar Akram

Mr Mohamad Salah Diab (MARN: 1462262)

CASE NUMBER:

2117275

HOME AFFAIRS REFERENCE:

BCC2020/1100834

MEMBER:

Dr Jason Harkess

DATE:

11 April 2022

PLACE OF DECISION:

Melbourne

DECISION:

The Tribunal remits the application for reconsideration, with the direction that the Applicant meets the following criteria for a Student (Temporary) (Class TU) (Subclass 500) visa:

cl. 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth).·

Statement made on 11 April 2022 at 4:19pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment status – PRISMS database – decision under review remitted

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

INTRODUCTION AND OVERVIEW

Visa Refusal – Application for Review

1. The Applicant is a citizen of Pakistan and is 31 years old. He seeks review of a decision made by a delegate of the Minister refusing to grant him a student visa.

2. The Applicant applied for his visa on 10 March 2020. The visa application was refused by the delegate on 22 November 2021. The Applicant lodged his review application with the Tribunal on 23 November 2021.

Type of Visa

1. The specific type of visa the Applicant applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Student (Temporary) (Class TU) (Subclass 500) visa.[1] 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’).

   [1] See Migration Regulations 1994 (Cth), Sch 1, cl 1222; Sch 2, cls 500.1 to 590.612.

2. If granted, a student visa permits a non-citizen to enter and remain in Australia to study full-time on a temporary basis. For the visa to be granted, the Applicant must meet the primary criteria set out in Part 500 of Schedule 2 of the Regulations.[2]

   [2] See Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

Reasons for Refusal

1. The student visa was initially refused in this case because the delegate found that the Applicant did not satisfy the primary criteria contained in cl 500.211 of Schedule 2 of the Regulations. The delegate was not satisfied that he was enrolled in a registered course of study.

2. The delegate’s reasons are set out in a decision record. That decision record was provided to the Applicant when he was notified that his visa application had been refused.[3] The Applicant also provided a copy of that decision record to the Tribunal when he lodged his review application.

   [3] Notification was given in accordance with s 66 of the Migration Act 1958 (Cth) and reg 2.55 of the Migration Regulations 1994 (Cth) by emailing the notification and decision record to the Applicant’s last email address known to the Minister. By the operation of reg 2.55(8) of the Regulations, the Applicant is taken to have received the notification and decision record on the date that it was sent.

Issues for Determination

1. The ultimate issue for determination by the Tribunal is whether the Applicant is currently enrolled in a course of study, as required by cl 500.211 of Sch 2 of the Regulations (this is known as the enrolment criterion).

Determination of Application without Hearing

1. When the Tribunal came to prepare to consider the review application it arranged for a check to be conducted on the PRISMS database in relation to the Applicant’s enrolment status and education history in Australia. That check was carried out by the Tribunal on 7 March 2022.

2. The PRISMS database revealed that, as at 7 March 2022, the Applicant was currently enrolled in the following courses of study:

   (a)Diploma of Nursing [095475A] (CCC50186), expected to commence on 30 May 2022 and end on 10 December 2023; and

   (b)Bachelor of Applied Social Science (Community Services) [097401C] (CCC51390), expected to commence on 19 February 2024 and end on 6 December 2026.

3. By the operation of s 360(2)(a) of the Act, in circumstances where the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it, the Tribunal is not obliged to conduct a hearing.[4] The Tribunal has considered that it should decide the review in the Applicant’s favour in this case for reasons set out below. Accordingly, no hearing is necessary.

   [4] Singh v MIBP [2017] FCAFC 67

TRIBUNAL’S DETERMINATION

1. The most recent record of the Applicant’s enrolment status in a registered course of study is that which was obtained from the PRISMS database on 7 March 2022, as referred to above. It indicates the Applicant is currently enrolled in a registered course of study as explained above.

2. Based on the material before the Tribunal, the Tribunal is satisfied that the Applicant is currently enrolled in a registered course of study for the purposes of cl 500.211 of Schedule 2 of the Regulations.

DECISION

1. The Tribunal remits the application for reconsideration, with the direction that the Applicant meets the following criteria for a Student (Temporary) (Class TU) (Subclass 500) visa:

   (a)cl. 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth).

Dr Jason Harkess
Member