GARCIA FURTADO (Migration)

[2019] AATA 1895

GARCIA FURTADO (Migration) [2019] AATA 1895 (21 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Alexsandro GARCIA FURTADO
Ms Flavia Maria MOTTA DOS SANTOS

CASE NUMBER:  1834534

DIBP REFERENCE(S):  BCC2018/3583977

MEMBER:David Barker

DATE:21 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 visa:

·cl.500.213 of Schedule 2 to the Regulations

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

·cl.500.311

Statement made on 21 March 2019 at 4:26pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – IELTS test results ­– exceeded minimum required score – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.213, 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 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 20 September 2018. The delegate refused to grant the visas on 9 November 2018.

2. The delegate made the decision on the basis that evidence of English language ability was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. On 7 March 2019 the Tribunal received an IELTS Test Report Form for a test undertaken by the applicant on 24 February 2019, recording that the applicant received an overall band score of 7.0. Clause 500.213 of Schedule 2 to the Regulations sets out that, if required by the Minister, the applicant is to give evidence that they have a satisfactory level of English language proficiency. The relevant requirements for this clause are set out the legislative instrument Migration (IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument 2018 (IMMI 18/015). Under IMMI 18/015 the IELTS is a relevant English language test and the applicant’s score of 6.5 is above the minimum required score of 5.5.

4. Accordingly, the Tribunal is satisfied that the applicant meets cl.500.213.

   The second named visa applicant – member of a family unit

5. As the Tribunal has determined the primary visa applicant satisfies the criteria in cl.500.213, other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

6. The second named visa applicant is the de facto partner of the primary applicant. The Tribunal viewed the relationship certificate issued by NSW Births Deaths and Marriages on 23 November 2017 of the primary visa applicant and the second named visa applicant.

7. Accordingly the second named visa applicant is a member of the family unit of the primary applicant and satisfies cl.500.311 in Schedule 2 of the Migration Regulations.

8. Given the above findings, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

   DECISION

9. 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.500.213 of Schedule 2 to the Regulations.

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

    ·cl.500.311 of Schedule 2 to the Regulations.

    David Barker
    Member