AMMANN (Migration)

[2025] ARTA 1785

AMMANN (Migration) [2025] ARTA 1785 (12 August 2025)

Decision and Reasons for Decision

Applicant:  Ms Stefanie Natascha AMMANN

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:  2406426

Tribunal:  General Member F Syme

Place:  Melbourne

Date:  12 August 2025

Decision:  The decision under review is affirmed.

Statement made on 12 August 2025 at 11:50am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa and study history – enrolled at time of application, but not at time of department’s decision or currently – invited to do honours year but didn’t – medical condition – request for referral for ministerial consideration – graduate visa refused, related application for ministerial intervention dismissed and AI-based integrity checking – not referred, but applicant can request directly – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359A
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.111, 500.211(a), 500.212(a)

CASE
Davis v MICMSMA [2023] HCA 10

Statement of reasons

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs 1 on 8 March 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant made the review application to the Administrative Appeals Tribunal (the AAT).

2. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 20124 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.

3. The applicant applied for the visa on 12 December 2023. 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.

4. The delegate refused to grant the applicant a student visa on the basis that the applicant did not meet the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate was not satisfied that the applicant is a genuinely intended to stay in Australia temporarily for the purpose of cl 500.212(a).

5. The applicant appeared before the Tribunal via video on 4 August 2025 to give evidence and present arguments. The applicant was assisted in relation to the review. The representative provided pre-hearing and post-hearing written submissions and oral submissions at the hearing. The submissions of the representative include that the Tribunal should refer the applicant to the Ministerial Intervention Unit under s 351 of the Act.

6. For the following reasons, the Tribunal considers the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The issue in the applicant’s review is whether the applicant meets the requirements in cl 500.211(a), that she is enrolled in a registered course of study.

2. 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). ‘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) (the ESOS Act), to provide the course to overseas students.

3. On 24 March 2025, the Tribunal requested the applicant to provide evidence she was enrolled in a registered course and to complete a student visa information form (the information form) within 14 days. The representative replied on 7 April 2025 providing some supporting documents related to the applicant’s past studies and requesting an extension of time to finalise a response. A Tribunal officer replied 8 April 2025 requiring the applicant to

1 As the Minister was then called.

provide her response within the due date. The representative did not provide any additional information.

1. On 16 July 2025, the Tribunal sent the hearing invitation to the applicant which made another request the applicant provide evidence of her current enrolment in a registered course and other supporting evidence. In the response to hearing notice dated 23 July 2025, the representative indicated the applicant would provide the Tribunal with a statutory declaration and (unspecified) annexures.

2. The representative returned the information form to the Tribunal on 28 July 2025. Therein the applicant declared she is not currently enrolled in a registered course. Elsewhere in the information form, the applicant stated she was conferred a graduate diploma in education at Southern Cross University in February 2025 her results on which meant she was placed on the Dean’s Honours List and was invited to complete an honours year. That invitation was attached to a pre-hearing submission from the representative. The invitation was dated December 2024 to study a one year Bachelor of Education (Honours) program commencing in term 1, 2025.

3. The information form elsewhere included information about her study history in Australia, her being diagnosed with a named medical condition, twice, holding a COVID visa for a period of time and the refusal of an application for a Subclass 485 graduate visa due to an oversight in providing evidence of her meeting the English language requirement after she applied for that visa.

4. At the hearing, the Tribunal raised with the applicant the issue of her not being currently enrolled in a registered course. The applicant confirmed she did not take up the offer to study the honours program. Partly because she was uncertain it is an ESOS registered course. Partly because of uncertainty when Tribunal would hear her review and partly due to the history of her medical condition causing her to be hesitant to commit to that study in uncertain circumstances whether she could remain in Australia to complete it.

5. Following the procedure set out in s 359A of the Act, the Tribunal discussed with the applicant and invited her to comment on information from the PRISMS 2 database of the Department of Education maintained under the ESOS Act 3 indicated the applicant was not currently enrolled in a registered course of study. The Tribunal explained that relying on the information in the PRISMS database would be a reason to find she is not enrolled in a course of study and that she therefore could not be granted a student visa. The applicant acknowledged that she understood the information and agreed that the information in the PRISMS database is correct.

6. The representative made oral submissions raising the medical history of the applicant, as well as the circumstances that led to the refusal of her Subclass 485 graduate visa and changes to the policy about temporary entrant criteria as the applicant was clearly a genuine student at the time of her making the visa application. The representative submitted that the applicant’s circumstances warranted the Tribunal referring her case for Ministerial intervention. The Tribunal agreed to the representative’s request to allow her time to provide post-hearing written submissions addressing the Minister’s guidelines for intervention.

2 Provider Registration and International Student Management System (PRISMS) for education providers registered with the Commonwealth Register of Institutions and Courses for Overseas Students (ELICOS)

3 Home – PRISMS: portal.api.prisms.education.gov.au

1. The Tribunal considers the PRISMS database to be a reliable source of information and the applicant has not raised any concern to the contrary, rather she conceded at the hearing that the information on the PRISMS data base about her enrolment status is accurate.

2. On the information 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(a) is not met.

3. At the hearing, the applicant confirmed to the Tribunal she is not waiting for the marking of a postgraduate thesis, nor is she a Foreign Affairs student or a Defence Student. Accordingly, the applicant does not satisfy cl 500.211(b)-(d).

4. Given the above, 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.

   Ministerial Intervention

5. The applicant has requested that the Tribunal refer her case to the Department for consideration by the Minister pursuant to s 351 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

6. On 11 August 2025, the Tribunal received the representative’s post-hearing written submissions. In summary, the representative submits the applicant meets Minister’s guidelines (which are published on the website of the Department) 4 because:

   a.She has compassionate circumstances regarding her named medical condition.

   b.She was a genuine student at the time she applied for the visa.

   c.She has been a victim of unfair AI systems experimentation, contrary to her rights under Articles 7 & 13 of the International Covenant on Civil and Political Rights (ICCPR). Her student visa was refused by an AI based integrity checking.

   d.Her Subclass 485 graduate visa was refused unfairly due to an arbitrary, technical requirement to include her evidence of her English language result with the visa application, which she omitted to provide due to a side effect of her named medical condition. Her English test result far exceeded the statutory requirement for grant of the visa.

   e.The applicant made an earlier application for Ministerial intervention related to the Subclass 485 visa (the first MI application) which was summarily dismissed in April 2020. The first MI application was dismissed under guidelines that in 2023 the High Court in Davis 5 found were unlawful. The Ministerial Intervention Unit should consider granting a Subclass 485 visa to the applicant.

   f.The age eligibility for the Subclass 485 visa was lowered from 50 to 35 years of age in July 2024. The applicant is unfairly and unreasonably no longer able to meet the criteria for that visa.

   
   

   4  immi.homeaffairs.gov.au/what-we-do/status-resolution-services/ministerial-intervention

   5 Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10

g.The applicant may be subject to a s 48 bar, public interest, return, general temporary entrant criteria, restricting her subsequent visa options. She has no prospects to remain legally in Australia beyond the completion of her studies.

1. The representative concludes the Tribunal should refer the applicant to the Minister for intervention, particularly due allegedly unlawful dismissal of the first MI application. With the post-hearing submission, the representative provided the provided the applicant’s IELTS test report form, the letter from the Department dismissing the first MI application and a report from the Australia Financial Review critical of the use of automation in processing visas by the Department.

2. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in Department policy but has decided not to refer the matter. While the Tribunal is sympathetic to the medical history of the applicant, the evidence before the Tribunal does not suggest she will suffer serious, ongoing or irreversible harm related to the refusal of her student visa. The Tribunal is not reviewing the decision to refuse her Subclass 485 visa. It would not be appropriate for the Tribunal to refer the applicant to the Minister for intervention related to that decision regardless of the circumstances that led to the visa refusal being a technicality, nor the alleged unlawfulness of the dismissal of the first MI application. The Tribunal is not persuaded the rights of the applicant under the ICCPR are affected by the decision under review, it is the supposition of the representative the Department unfairly or improperly made that decision using AI or automation.

3. The Tribunal notes that the applicant can still make a request directly to the Minister.

DECISION

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

   Date of hearing:  4 August 2025

   Representative for the Applicant:           Mrs Elizabeth C Fischer