Chowdhury (Migration)

[2017] AATA 2509

Chowdhury (Migration) [2017] AATA 2509 (27 October 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Asif Reaz Chowdhury

CASE NUMBER:  1619050

DIBP REFERENCE(S):  CLF2016/18336

MEMBER:Penelope Hunter

DATE OF DECISION:  27 October 2017

DATE CORRIGENDUM

SIGNED:30 November 2017

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Paragraph 6 of the decision should read ‘For the following reasons, the Tribunal has concluded that decision under review should be remitted for reconsideration’.

Paragraph 3,9,12 of the decision should read: cl. 573.222 of the migration Regulation Scheduled 2.

Paragraph 10 of the decision should read: PIC 4021.

Penelope Hunter
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Asif Reaz Chowdhury

CASE NUMBER:  1619050

DIBP REFERENCE(S):  clf2016/18336

MEMBER:Penelope Hunter

DATE:27 October 2017

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 573 Higher Education Sector visa

·cl.573.222 of Schedule 2 to the Regulations.

·PIC 4021 of Schedule 4 to the Regulations.

Statement made on 27 October 2017 at 4:14pm

CATCHWORDS

Migration –Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in higher education course – Applicant enrolled in higher education course - Requirement to hold valid passport – Applicant holder of valid passport

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.40A, Schedule 2, cl 573.111, cl 573.222, Schedule 4, PIC 4021

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 27 October 2016 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 March 2016 to undertake study in Australia. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575), or whether the applicant has the support of the relevant Minister (Subclass 576).

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.572.222 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he was not enrolled in a course of study. Further the applicant was found not to satisfy the requirements of PIC 4021 of Schedule 4 to the Regulations because he did not have a valid passport.

4. The applicant appeared before the Tribunal on 27 October 2017 to give evidence and present arguments.

5. At the hearing the applicant presented to the Tribunal a Confirmation of Enrolment in a Bachelor of Commerce degree at the Australian Catholic University with course dates commencing 26 February 2017 and his passport issued by the Bangladesh High Commission on 17 May 2016.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. With limited exceptions, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application. This requirement does not apply to certain ‘eligible higher degree students’, ‘eligible university exchange students’, and ‘eligible non-award students’. There is no evidence before the Tribunal that that the applicant is an eligible higher degree student as defined in cl.573.111 and 574.111 respectively, or an eligible university exchange student or eligible non-award student for the purposes of Subclass 575 as defined in cl.575.111.

8. The applicant has provided to the Tribunal a Confirmation of Enrolment. The Tribunal has further reviewed information contained in the Provider Registration and Information Student Management System (PRISMS) pertaining to the applicant.

9. On the evidence before it Tribunal finds that the applicant is currently enrolled in a course of study that is a principal course, and he satisfies cl 572.222.

10. The applicant also presented at the hearing his passport. The applicant has therefore presented evidence that he holds a valid passport, it appears to have been issued by an official source, the Bangladesh High Commission, Canberra. There is no evidence before the Tribunal that it is not in the appropriate form. Therefore the Tribunal finds that the applicant satisfies PIC 2021 of Schedule 4 to the Regulations.

11. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

12. 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 572 Vocational Education and Training visa:

    ·cl.572.222 of Schedule 2 to the Regulations.

    ·PIC 4021 of Schedule 4 to the Regulations

    Penelope Hunter
    Member