KAUR (Migration)

[2017] AATA 2757

KAUR (Migration) [2017] AATA 2757 (8 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs AMANPREET KAUR
Mr ATAMJIT SINGH

CASE NUMBER:  1706940

DIBP REFERENCE(S):  BCC2016/1618841

MEMBER:Mark Bishop

DATE:8 December 2017

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 572 Vocational Education and Training Sector visa:

·cl.572.222(1)(a) of Schedule 2 to the Regulations.

Statement made on 08 December 2017 at 3:10pm       

CATCHWORDS
Migration – Student(Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Proof of enrolment in an approved course

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 572.222

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions 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).

2. The applicants applied to the Department of Immigration for the visas on 29 April 2016. The delegate decided to refuse to grant the visas on 29 March 2017. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visas because the applicant did not satisfy the requirements of cl.572.222 of Schedule 2 to the Regulations because there was no evidence the applicant was enrolled in an acceptable course of study and a check of the PRISMS did not indicate the applicant held enrolment in an acceptable course of study at 28 March 2017.

4. The applicant provided a copy of the decision record to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

7. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.222. Clause 572.222(1)(a) relevantly states:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)      the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   (b)     …

8. The decision record was published on 28 March 2017

9. On 14 October 2017 the applicant obtained a Certificate of Enrolment (COE) for the period 15 October 2017 until 14 October 2018 for enrolment in an Advanced Diploma of Business at Vocational Training Institute Pty Ltd.

10. The PRISMS for the applicant as at 12 August 2017 disclosed the applicant was enrolled in the above course for the time outlined.

11. The applicant did not provide a statement to the Tribunal.

12. The Tribunal has regard to the above. The Tribunal notes the applicant has now provided proof of enrolment in an approved course. Accordingly the applicant meets cl.572.222.

    Concluding Paragraph

13. As the Tribunal has found the applicant meets the requirement of cl.572.222(1)(a), it will remit the matter to the delegate for reconsideration.

14. As the second named applicant applied on the basis of being a dependant member of the first named applicant’s family unit, that application will be determined by reference to the outcome of the first named applicant’s application upon remittal for consideration.

    DECISION

15. 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 572 Vocational Education and Training Sector visa:

    ·cl.572.222(1)(a) of Schedule 2 to the Regulations.

    Mark Bishop
    Member