Ong (Migration)

[2022] AATA 2676

Ong (Migration) [2022] AATA 2676 (13 May 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Xinn Yie Ong

CASE NUMBER:  2202120

HOME AFFAIRS REFERENCE(S):           BCC2021/423818

MEMBER:  Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:          13 May 2022 at 2:39 pm (VIC time)

DATE OF WRITTEN RECORD:                15 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets clause

500.211 of schedule 2 to the Migration Regulations 1994.

Statement made on 15 June 2022 at 4:28pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.211

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 February 2022 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (the Act).

1. At the hearing on 13 May 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. This is an oral decision in case 2202120. The applicant’s name is Ms Ong. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 February 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under section 65 of the Migration Act 1958.

1. The applicant applied for the visa on 19 March 2021 for the purpose of undertaking study in Australia. This case involves a subclass 500 student visa application.

1. The delegate refused to grant the visa on the basis that the applicant in support of her application provided confirmations of enrolment in various courses, which the Provider Registration International Student Management System records indicated were cancelled on 19 October 2021. The PRISMS records further indicated to the delegate the applicant did not have any valid confirmation of enrolment in place.

1. On 13 May 2022 the applicant appeared before the tribunal to give evidence and to present arguments. The issue before the tribunal now is whether or not at the time of this hearing the applicant is enrolled in a current course of study. Clause 500.211 relevantly requires that at the time of decision the applicant must be enrolled in a course of study. Course of study is relevantly defined in clause 500.111 of the Regulations as a fulltime registered course. Registered course is defined in the Regulations as a course of education or training provided by an institution, body or person and is registered under the Education Services for Overseas Students Act 2000 to provide the course for overseas students.

1. In advance of the hearing the applicant provided to the tribunal a confirmation of enrolment for a Diploma of Hospitality Management. The tribunal has considered that document. The document provides that the course starts on 18 April 2022 and is scheduled to conclude on 14 April 2024.

1. On the basis of that evidence, the tribunal is satisfied that the applicant is currently enrolled in a course of study as defined by clause 500.111 of the Regulations.

1. Accordingly, on the basis of the documentation provided to the tribunal the applicant is enrolled in a course of study and accordingly, clause 500.211 is met by the applicant. For these reasons the tribunal finds that the matter should be remitted to the department for reconsideration with a direction that the applicant satisfies clause 500.211.

1. The tribunal remits the application for reconsideration with a direction that the applicant satisfies clause 500.211 of schedule 2 to the Migration Regulations 1994.

DECISION

1. The Tribunal remits the decision under review with the direction that the applicant meets clause 500.211 of schedule 2 to the Migration Regulations 1994.

Vanessa Plain Member