KC (Migration)

[2019] AATA 495

KC (Migration) [2019] AATA 495 (6 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Deepak KC
Mrs Sujita KC

CASE NUMBER:  1715536

DIBP REFERENCE(S):  BCC2017/1559582

MEMBER:Wendy Banfield

DATE:6 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 500 visa:

·cl.500.211 of Schedule 2 to the Regulations

·cl.500.311 of Schedule 2 to the Regulations

Statement made on 06 February 2019 at 2:09pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – enrolment conditions – evidence of studies provided – criteria met – decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2 cl 500.211, 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 1 May 2017. The delegate refused to grant the visas on 30 June 2017.

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

3. On 5 February 2019 the Tribunal received a copy of a Confirmation of Enrolment (COE) certificate indicating the applicant is enrolled in a Certificate IV in Commercial Cookery. A statement of attainment was also provided. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

4. The applicant attended a hearing on 6 February 2019. In the invitation dated 10 January 2019 the applicant was asked to provide a current COE and evidence of past studies. He was not informed prior to the hearing that he would be assessed against the genuine temporary entrant criteria and for this reason; the decision is based on the issue of enrolment only.

   Member of Family Unit – Secondary visa applicant

5. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria.  Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

6. As the Tribunal accepts the first named visa applicant satisfies the primary criteria, the secondary applicant meets the criteria because they are a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.500.211.

   DECISION

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

   ·cl.500.211 of Schedule 2 to the Regulations

   ·cl.500.311 of Schedule 2 to the Regulations

   Wendy Banfield
   Member