Khan (Migration)

[2022] AATA 5245

Khan (Migration) [2022] AATA 5245 (30 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MD Mahbub Islam Khan

REPRESENTATIVE:  Ms  Simplepreet Kaur (MARN: 1805025)

CASE NUMBER:  2202882

HOME AFFAIRS REFERENCE(S):          BCC2019/4962053

MEMBER:Gabrielle Cullen

DATE:30 November 2022

PLACE OF DECISION:  Sydney

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 500.211 of Schedule 2 to the Regulations.

Statement made on 30 November 2022 at 5:10pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment status – evidence of enrolment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 Home Affairs on 10 February 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 3 October 2019. 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 had not provided evidence of enrolment as required by cl 500.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The applicant attended a hearing on 11 October 2022. The applicant was given time to provide evidence of enrolment

5. On 24 October 2022 the applicant provided a current COE dated 24 October 2022  indicating enrolment in a Bachelor of Information Technology from 20 March 2023 to 15 March 2026. The PRISMS record confirms enrolment in this course.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue arising in this review is whether the applicant satisfies cl 500.211, which relevantly requires at the time of this decision that 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.

7. ‘Course of study’ is relevantly defined in cl 500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in reg 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 (Cth), to provide the course to overseas students.

8. On 26 October 2022, the Tribunal received evidence from the applicant which indicates that he is enrolled in a registered course, a Bachelor of Information Technology from 20 March 2023 to 15 March 2026. The PRISMS record accessed 29 November 2022 confirms enrolment in this course. 

9. In light of the new evidence received, the Tribunal is satisfied that at the time of this decision the applicant is enrolled in a registered course of study and accordingly cl 500.211(a) is met.

10. As the criterion is met, the Tribunal has concluded that the matter should be remitted for reconsideration.

    DECISION

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

    ·cl 500.211 of Schedule 2 to the Regulations

    Gabrielle Cullen
    Member