Almughim (Migration)

[2017] AATA 2641

Almughim (Migration) [2017] AATA 2641 (25 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdulrahman Almughim

CASE NUMBER:  1715487

DIBP REFERENCE(S):  BCC2017/1241933

MEMBER:Michael Ison

DATE:25 September 2017

PLACE OF DECISION:  Melbourne

DECISION: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 500 (Student) visa:

·cl.500.211 of Schedule 2 to the Regulations.

Statement made on 25 September 2017 at 5:21pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Evidence of enrolment provided

LEGISLATION

Education Services for Overseas Students Act 2000

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

Migration Regulations 1994, Schedule 2, cl 500.211, r 1.03

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 29 June 2017 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 1 April 2017. 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. On 29 June 2017 the delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not enrolled in a course of study.

4. On 18 July 2017 the applicant applied to the Tribunal for a review of the delegate’s decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 in the present case is whether the applicant meets the requirements of cl.500.211 by being enrolled in an appropriate course of study at the time of the Tribunal’s decision.

7. 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 of the Regulations.

8. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.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, to provide the course to overseas students.

9. As part of the applicant’s application for review, the Tribunal received a Confirmation of Enrolment for the applicant for a Bachelor of Engineering (Civil)(Honours) at Flinders University, South Australia.

10. The Bachelor of Engineering (Civil)(Honours) course the applicant has enrolled in is scheduled to be conducted from 24 July 2017 to 10 July 2020. I am satisfied it is a full time registered course for the purpose of the Regulations.

11. Therefore, the Tribunal is satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 of the Regulations is met.

12. After considering the available evidence, the Tribunal was satisfied that pursuant to s.360(2)(a) of the Act, it should decide the review in the applicant’s favour. Therefore, the applicant was not required to appear before the Tribunal.

13. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

14. 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 500 (Student) visa:

    ·cl.500.211 of Schedule 2 to the Regulations.

    Michael Ison
    Senior Member