Maungkaew (Migration)

[2023] AATA 2263

Maungkaew (Migration) [2023] AATA 2263 (20 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jidapa Maungkaew

REPRESENTATIVE:  Mrs Mayurachat Gifford (MARN: 1790249)

CASE NUMBER:  2306218

HOME AFFAIRS REFERENCE(S):          BCC2023/1445845

MEMBER:Frank Russo

DATE:20 July 2023

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 20 July 2023 at 3:47pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – current enrolment in registered course of study – letter of offer and proof of payment provided to department, but no confirmation of enrolment – confirmation of enrolment and letter from college provided to tribunal, and enrolment record checked – decision made without hearing necessary – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.111, 500.211(a)

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 19 April 2023 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 1 March 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant, who is a Thai national, 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 visas on the basis that the applicant did not satisfy the requirements of cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because there was no evidence that the applicant was currently enrolled in a registered course of study.

4. The applicant was assisted in relation to the review.

5. On 11 July 2023 the Tribunal invited the applicants to attend a hearing on 4 August 2023, however after reviewing the information on the Tribunal and Department files, in particular information about the applicant’s enrolments, the Tribunal considered that on the basis of the material before it, it should decide the review in the applicant’s favour, and therefore the Tribunal is not required to invite the applicant to appear before it at a hearing.

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. 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 case is whether the applicant is enrolled in a full-time registered course, and therefore a course of study, as required by cl 500.211(a).

   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 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.

10. The delegate’s decision notes that on 8 March 2023 the applicant was asked to provide an active confirmation of enrolment (CoE). As at the date of the delegate’s decision, an active CoE had not been provided to the Department, although the delegate notes that the applicant provided copies of a letter of offer from Le Cordon Bleu Australia and proof of payment of an amount of $13,878 to Le Cordon Bleu Australia, but the delegate placed little weight on these details.

11. On 14 July 2023 the applicant provided a response to the hearing invitation, which included copies of CoEs for the Certificate III in Commercial Cookery at Le Cordon Bleu Australia commencing on 24 April 2023 and ending on 28 June 2024 and an Advanced Diploma of Hospitality Management from 15 January 2025 to 27 June 2025. The applicant also provided a letter of confirmation from Le Cordon Bleu Australia, dated 14 July 2023, which confirms the applicant’s enrolment in these two courses, as well as in a Certificate IV in Kitchen Management.

12. A check of the applicant’s enrolment records in the Provider Registration International Student Management System (PRISMS) as at 13 July 2023, indicates that the applicant is enrolled in the Certificate III in Commercial Cookery, for which she is recorded as ‘Studying’. It confirms that she has also been ‘Approved’ to enrol in the Certificate IV in Kitchen Management and the Advanced Diploma of Hospitality Management.

13. 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.

14. 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

15. 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.

    Frank Russo
    Member