DASTGEER (Migration)

[2023] AATA 2708

DASTGEER (Migration) [2023] AATA 2708 (3 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nauman Muhammad Dastgeer

REPRESENTATIVE:  Mr Asif Chaudhary (MARN: 2117670)

CASE NUMBER:  2307549

HOME AFFAIRS REFERENCE(S):          BCC2023/2076865

MEMBER:Frank Russo

DATE:3 August 2023

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 3 August 2023 at 2:10pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – current enrolment – evidence of current enrolments provided upon review – decision under review remitted       

LEGISLATION

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

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 30 May 2023 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 31 March 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.

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 there was no evidence that the applicant was currently enrolled in a registered course of study.

4. The applicant was assisted in relation to the review by Mr Chaudhary.

5. On 13 July 2023 the Tribunal invited the applicant to attend a telephone hearing on 8 August 2023. On 3 August 2023, Mr Tiwana, a legal representative acting on behalf of the applicant provided the Tribunal with a completed Form 956 (Departmental form for the appointment of a representative), together with a written submission and other documents relevant to the issue of the applicant’s enrolment in a registered course of study. The Tribunal considers that, on the basis of the material before it, it should decide the review in the applicant’s favour, and has therefore proceeded to make a decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 full-time registered course, and therefore a course of study, as required by cl 500.211(a).

   Enrolment (cl 500.211)

8. 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.

9. ‘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.

10. The delegate’s decision notes that on 28 April 2023 the applicant was asked to provide an active confirmation of enrolment (CoE). As at the date of the delegate’s decision, an active CoE had not been provided to the Department and no response was provided.

11. On 2 August 2023, Mr Tiwana provided the Tribunal with a Departmental form confirming his appointment as the applicant’s representative. Although Mr Tiwana did not provide a completed Form MR5 to notify the Tribunal of the applicant’s change of representative, I accept that the information contained in the Departmental Form 956 is in this case sufficient for the Tribunal to accept the documents submitted on behalf of the applicant. The documents include a response to the hearing invitation, a submission and other documents, including confirmations of enrolment (CoE) for the following courses of study:

    a.English for Academic Purposes from 17 July 2023 to 22 September 2023; and

    b.Bachelor of Business from 23 October 2023 to 12 September 2025.

12. A check of the applicant’s enrolment records in the Provider Registration International Student Management System (PRISMS) as at 3 August 2023 confirms the information contained in the CoEs provided by the applicant, including that the applicant is currently enrolled in English for Academic Purposes and is approved to study the Bachelor of Business.

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.

    Frank Russo
    Member