Cañete (Migration)

[2020] AATA 955

Cañete (Migration) [2020] AATA 955 (31 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Karen Cañete

CASE NUMBER:  2000754

HOME AFFAIRS REFERENCE(S):          BCC2019/1986320

MEMBER:Steven Griffiths

DATE:31 March 2020

PLACE OF DECISION:  Adelaide

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 31 March 2020 at 2:59pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment status – evidence provided to the Tribunal – decision under review remitted

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

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 15 January 2020 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 18 April 2019. 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 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 a current Confirmation of Enrolment was not provided.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. The Tribunal has read and had regard to information provided by the applicant to the Department. The Tribunal has also read and had regard to the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant with her application for review.

7. The Tribunal notes the delegate’s decision was based around compliance with cl.500.211 of the Regulations and if the applicant had a current Confirmation of Enrolment.

8. The Tribunal has read and had regard to the information provided by the applicant on 10 February 2020.

9. The applicant is a 26 year old female from the Philippines, who arrived in Australia on 3 July 2018 on a Visitor Visa (subclass 600), which was to cease on 1/9/18, at which day she left Australia. She arrived in Australia on 19 December 2018, again on a Visitor Visa (subclass 600), which was to cease on 2/7/19, and she left Australia on 15/3/19 and returned on 2/4/19. She was on a WA-101 Bridging Visa from 23/4/19 and on a WB-020 Bridging Visa from 14/8/19, during which she has left Australia twice and returned.

10. The Tribunal determines the issue in the case is whether the applicant satisfies the primary criteria contained in cl.500.211 of the Regulations, which states the following must be satisfied:-

    One of the following applies:

    (a)the applicant is enrolled in a course of study;

    (b)if the application is made in Australia – the applicant is seeking to remain in Australia because the relevant education institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

    (c)if the applicant is a Foreign Affairs student – the applicant has the support of the Foreign Affairs Minister for the grant of the visa;

11. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulation 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. The applicant has made no claim to meet any of the alternative criteria of cl.500.211.

12. The Tribunal accepts the evidence provided by the applicant on 10 February 2020 of correspondence from TAFE SA, dated 3 February 2020, detailing her enrolment in, and continued study of, the Diploma of Early Childhood Education and Care, noting the correspondence refers to the IMMI( Immigration Australia) process does not allow a Certificate of Enrolment to be issued as the student visa application refusal decision is currently being reviewed, but will be if the review supports the applicant and will be considered as part of the completion of the visa application process.

13. 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 is met.

14. 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

15. 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.

    Steven Griffiths
    Member