DANG (Migration)

[2019] AATA 3228

DANG (Migration) [2019] AATA 3228 (12 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Khanh Hang Dang
Mr Van Vinh Nguyen

CASE NUMBER:  1728073

HOME AFFAIRS REFERENCE(S):          BCC2017/3230188

MEMBER:Mila Foster

DATE:12 April 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.211 of Schedule 2 to the Regulations.

Statement made on 12 April 2019 at 10:30am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – enrolled in a course of study – enrolled in an approved course at the time of decision – decision under review remitted for reconsideration

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 500.111, 500.211, 500.311

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 and Border Protection on 4 November 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 6 September 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The first named 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. The second named applicant, who claims to be the first named applicant’s husband, applied for the visa as a member of her family unit.

3. The delegate in this case refused to grant the visas on the basis that the first named applicant did not satisfy the requirements of cl.500.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she was not enrolled in a course of study and that the second named applicant therefore did not satisfy cl.500.311.

4. For the following reasons, I have 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. 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 first named applicant satisfies cl.500.211, specifically whether she is enrolled in a course of study.

6. 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 first named applicant does not claim to meet any of the alternative criteria in cl.500.211. ‘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.

7. According to the Australian Department of Education and Training PRISMS database (which the Tribunal has access to) the first named applicant is enrolled in a course of study, namely, a Master of Professional Accounting provided by the Kaplan Business School Pty Ltd. I am therefore satisfied that at the time of this decision, the first named applicant is enrolled in a course of study and accordingly cl.500.211 is met. The appropriate course is therefore to remit her application to the Minister to consider the remaining criteria for the visa.

8. Clause 300.311 contains one of the secondary criteria for a student visa. Relevantly, it requires the applicant to be a member of the family unit of a person who, having satisfied the primary criteria, holds a student visa. While the second named applicant claims to be the first named applicant’s husband and I have found that the first named applicant satisfies cl.500.211, he cannot satisfy cl.500.311 at the time of this decision because the first named applicant does not hold a student visa.

9. However, the second named applicant may meet cl.500.311 and the remaining secondary criteria if, on reconsideration of the first named applicant’s application, the first named applicant subsequently meets the remaining primary criteria and is granted a student visa. Thus, the appropriate course is to also remit the second named applicant’s visa application to the Minister for reconsideration on the basis that the first named applicant satisfies cl.500.211.

   DECISION

10. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.211 of Schedule 2 to the Regulations.

    Mila Foster
    Member