Kahlon (Migration)

[2018] AATA 3186

Kahlon (Migration) [2018] AATA 3186 (1 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sandeep Kaur KAHLON
Mr Jawahar Singh
Master Balroop Singh

CASE NUMBER:  1732628

HOME AFFAIRS REFERENCE(S):           BCC2017/2976145

MEMBER:Stephen Witts

DATE:1 August 2018

PLACE OF DECISION:  Melbourne

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 01 August 2018 at 2:57pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Enrolment in a registered course – Copy of enrolment provided to the Tribunal – 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

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 December 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 18 August 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas on the basis that the applicant did not satisfy the requirements of cl.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not enrolled to study a course in Australia.

4. The applicants appeared before the Tribunal on 1 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicants were assisted in relation to the review by their registered migration agent.

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 to study a course in Australia.

   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 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.

10. At the hearing the Tribunal had a discussion with the applicant concerning her current enrolment status. The applicant confirmed that she was enrolled to study a Diploma of Leadership and Management which begins on 6 August 2018 and is due for completion on 4 August 2019. The Tribunal noted that it has a copy of a current enrolment to this effect dated 27 July 2018 which confirms the applicant’s enrolment. This enrolment is included in AAT file folio 32.

11. 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.

12. 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

13. 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.

    Stephen Witts
    Member