Hussain (Migration)

[2020] AATA 1101

Hussain (Migration) [2020] AATA 1101 (7 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mujahid Hussain

CASE NUMBER:  1722153

HOME AFFAIRS REFERENCE(S):          BCC2017/1740128

MEMBER:Andrew George

DATE:7 April 2020

PLACE OF DECISION:  Darwin

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.500.215 of Schedule 2 to the Regulations.

Statement made on 7 April 2020 at 4:52pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – health insurance – evidence of cover provided to tribunal – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 572.215

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 30 August 2017 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 16 May 2017. 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.500.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not provide evidence of his Overseas Student Health Cove for the duration of his proposed study period.

4. The applicant appeared before the Tribunal on 10 March 2020 to give evidence and present arguments. Contrary to the hearing invitation, the applicant had submitted late evidence on 9 March 2020 that had not been read prior to the commencement of the hearing. The hearing was adjourned until 6 May 2020 upon applicant’s application. In the interim, all in person hearings have been cancelled for the month of May due to the present pandemic. The Tribunal has reviewed the material submitted on 9 March 2020 and can decide the matter.

5. The applicant was assisted in relation to the review by their registered migration agent who did not appear before the Tribunal.

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 or not the applicant satisfies the requirements of cl.500.215 of Schedule 2.

8. The Tribunal has before it an Overseas Student Confirmation-of Enrolment indicating that the applicant will end his Bachelor of Science degree at Charles Darwin University on 30 November 2020. The Tribunal also has before it a Certificate of Insurance of Overseas Student Health Cover from Allianz for the period 1 April 2020 to 31 March 2021. The Tribunal is therefore satisfied that the applicant has adequate arrangement for health insurance during the period of the applicant’s intended stay in Australia.

9. Accordingly, the Tribunal is that the applicant meets cl.500.215 of Schedule 2 to the Regulations.

10. 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

11. 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.500.215 of Schedule 2 to the Regulations.

    Andrew George
    Member