Krayani (Migration)

[2017] AATA 1949

Krayani (Migration) [2017] AATA 1949 (17 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hussein Krayani

CASE NUMBER:  1711067

DIBP REFERENCE(S):  BCC2016/4333283

MEMBER:Lilly Mojsin

DATE:17 August 2017

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 17 August 2017 at 3:29pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Enrolment in Higher Education Sector course – Course of study

LEGISLATION

Education Services for Overseas Students Act 2000

Migration Act 1958, ss 65, 360(2)(a)

Migration Regulation 1994, Schedule 2 cl 500.111, cl 500.211, r 1.03

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 8 May 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 22 December 2016.

3. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).

4. 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.

5. The delegate in this application 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 applicant did not provide a Confirmation of Enrolment [CoE] for study in the Higher Education Sector.

6. In reaching its decision the Tribunal did not find it necessary to invite the applicant to a hearing, as it was able to decide the review in the applicant's favour on the basis of the material before it: s.360(2)(a) of the Act.

   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 application is whether the applicant is enrolled in a course of study (cl.500.211(a)).

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. On 13 June 2017 the applicant provided to the Tribunal a CoE to study a Master of Business Administration (Advanced) commencing on 5 June 2017 and ending on 12 May 2017

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 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.

    Lilly Mojsin
    Member