Konda (Migration)

[2017] AATA 2878

Konda (Migration) [2017] AATA 2878 (15 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Praneeth Goud Konda

CASE NUMBER:  1713107

DIBP REFERENCE(S):  BCC2016/4316819

MEMBER:Mark Bishop

DATE:15 December 2017

PLACE OF DECISION:  Melbourne

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 15 December 2017 at 11:09am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Unsatisfactory course progress –  Enrolment cancelled by education provider – Not enrolled in course of study – Post decision record – Conditional Offer of enrolment from  another education institution   

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958 s 65
Migration Regulations 1994 r 1.03 Schedule 2 cls 500.111, 500.211-500.218

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 on 6 June 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 21 December 2016. 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.500.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the Certificate of Enrolment (COE) was cancelled by the education provider Holmes Institute Pty Ltd on 28 March 2017 due to unsatisfactory course progress and a check of PRISMS did not indicate the applicant held enrolment in an acceptable course at 6 June 2017.

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

5. The applicant was assisted in relation to the review by his 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. The issue in the present case is whether the applicant is enrolled in a course of study.

   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. The decision record was published on 6 June 2017.

11. On 19 November 2017 the applicant obtained a COE for the period 22 November 2017 until 21 August 2018 for enrolment in a Diploma of Business at Gen Institute Pty Ltd and a further COE for enrolment in an Advanced Diploma of Business from 15 September 2018 until 29 September 2019 at Gen Institute Pty Ltd.

12. The PRISMS record for the applicant as at 20 November 2017 disclosed the applicant was enrolled in the above courses for the time outlined.

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

14. The Tribunal has regard for the above. The tribunal notes the applicant has now provided proof of enrolment in an approved course. Accordingly the applicant meets cl.500.211.

    Concluding Paragraph

15. As the Tribunal has found the applicant meets the requirement of cl.500.211(a), it will remit the matter to the delegate for reconsideration.

    DECISION

16. 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.

    Mark Bishop
    Member