Chen (Migration)

[2022] AATA 2995

Chen (Migration) [2022] AATA 2995 (12 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Haiming Chen

REPRESENTATIVE:  Mr Hiu Sik Chu (MARN: 1909162)

CASE NUMBER:  2207798

HOME AFFAIRS REFERENCE(S):          BCC2020/1343838

MEMBER:Penelope Hunter

DATE:12 July 2022

PLACE OF DECISION:  Sydney

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 12 July 2022 at 3:58pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– applicant is enrolled in a course of study at the time of decision – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 500.111, 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 10 May 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 9 April 2020. 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 (Cth) (the Regulations) because the applicant had not provided evidence that they were enrolled in a course of study.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

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 is enrolled in a course of study.

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.

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 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), to provide the course to overseas students.

9. In response to a request for information sent by the Tribunal, the applicant has submitted the following:

   i.A Confirmation of Enrolment in an English course at Ozford Institute of Higher Education with course dates from 13 June 2022 to 27 July 2023, created on 14 June 2022.

   ii.A Confirmation of Enrolment a Bachelor of Business at Ozford Institute of Higher Education with course dates from 27 July 2022 to 21July 2025, created on 14 June 2022.

10. The Tribunal has further confirmed that the enrolment are listed on the applicant’s Provider Registration and International Student Management System records.  

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 is met.

12. 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

13. 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.

    Penelope Hunter
    Member