Pereira Martins (Migration) - [2025] ARTA 920

PEREIRA MARTINS (MIGRATION) [2025] ARTA 920 (10 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Roseli Pereira Martins
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2316147

Tribunal:General Member T. Quinn
Place:Melbourne
Date: 10 February 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·clause 500.211 of Schedule 2 to the Regulations.

Statement made on 10 February 2025 at 2:14pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – member of the family unit – person who holds a student visa – enrolment in a course of study – disadvantaged by processing delays – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Education Services for Overseas Students Act 2000 (Cth), s 10
Migration Act 1958 (Cth), ss 5, 65, 338, 347
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212, 500.311, 500.312; r 1.03
CASES
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 7 August 2023, the applicant applied for a Student visa (the visa) as a secondary applicant and member of the family unit of her partner, Mr De Sousa (‘the application’).[1]
[1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant’s spouse was the primary applicant and neither the applicant nor her partner claimed to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 28 September 2023, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[2]
[2]See clause 500.312 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that secondary student visa applicants be genuine applicants for entry and stay as a member of the family unit of a person who holds a student visa. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
On 9 October 2023, the applicant applied to the Administrative Appeals Tribunal (‘the AAT’) for a review of the delegate’s decision.[3]
[3] Pursuant to sections 338(2) and 347 of the Act.
The applicant was represented in relation to the review.
In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed since making their application. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information for the purposes of determining the outcome of their application for review. To this end, on 6 December 2024, the Tribunal wrote to the applicant inviting them to provide information in writing about their entry and stay in Australia. This letter requested that a number of questions be answered by the applicant (‘the questionnaire’).
On 18 December 2024, the applicant filed the completed questionnaire.
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 6 February 2025 to give evidence and present arguments at a video hearing. Her representative also attended the hearing along with her educational agent and friend, Mr Maron. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.
The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also considered its objective to provide a mechanism of review that is fair, just, quick, accessible and responsive and the delay that would occur if the hearing were not be conducted by video in exercising its discretion.
I have considered all of the information and evidence before me and consider this case ought to be remitted for reconsideration.
Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in my reasons as set out below. The reasons incorporate reference only to that information that I have found to be fundamental or materially significant to the determination of the issues in the case.[4]
[4]In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].
STATUTORY FRAMEWORK
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 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 delegate determined this case on the basis of the requirements of clause 500.312 being that the applicant must be a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa.
Due to delays in this matter coming before me, the evidence was consistent on the day of hearing that the applicant’s partner no longer holds a student visa. Therefore, the determinative issue became whether the applicant satisfies the requirement to be a member of the family unit of a person who holds a student visa (emphasis added) under clause 500.311.
Clause 500.311: ‘member of the family unit of a person who holds a student visa’
Clause 500.311 requires as follows:
The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:
(a) the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:
(i)the primary person's application under subregulation 2.07AF(3); or
(ii) information provided in relation to the primary person's application under subregulation 2.07AF(4); or
(b) the applicant became a member of the family unit of the primary person:
(i)after the grant of the student visa to the primary person; and
(ii)before the application was made.
Clause 500.311 relevantly requires that, at the time of decision, the applicant be a family member of the family unit of a person who holds a student visa and therefore the applicant’s application must be founded on evidence that her partner holds a student visa.[5]
[5]Clause 500.311 of Schedule 2 to the Regulations.
Enrolment Criterion – 500.211
At hearing, the applicant indicated she wished to study herself onshore. It is possible for secondary visa applicants to have their application for review remitted on the basis of evidence of enrolment.
Clause 500.211 requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.[6] ‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[7]
[6]Clause 500.211(a) of Schedule 2 to the Regulations.
[7]Regulation 1.03 of the Regulations.
All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[8] Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[9] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.
[8]Section 10 of the ESOS Act.
[9]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).
Producing evidence of current enrolment is a critical first step towards obtaining a student visa. Such evidence shows that the applicant has, prior to the Tribunal making its decision, entered into a legally binding contract with a registered course provider. That contract gives rise to several significant obligations. First, it obliges the course provider to provide the applicant with a pre-determined course of education or training over a specified period. Second, it obliges the applicant to pay for the course. Third, it obliges the applicant to complete the course requirements to receive a testament from the course provider as to what the applicant has achieved by way of formal qualification. An enrolment therefore represents a present and operating commitment by the applicant to complete a course of study. It is persuasive evidence of a tangible and immediate need for a student visa.
I gave the applicant time to obtain a confirmation of enrolment and provide evidence of same with the Tribunal.
At the date of writing, a PRISMS search for the applicant shows that she is currently enrolled in a General English course and an IELTS Preparation course – those enrolments having been created on 7 February 2025.
I am satisfied that the applicant is enrolled. Therefore, the applicant should be given the opportunity to put her case to the Department as to the genuine temporary entrant criteria set out clause 500.212. It is appropriate that the delegate assess the applicant against all of the remaining criteria beyond clause 500.211.
THE HEARING
The applicant’s partner has applied for a new student visa but presently remains onshore on a bridging visa awaiting the outcome of that application. The applicant gave this evidence at hearing at hearing. The applicant does not meet clause 500.311 of the Regulations. I explained this to her, and she indicated that she understood.
Mr Maron made submissions that the applicant and her partner have been severely disadvantaged by both the delays in this matter coming before the Tribunal and the delays in Mr De Sousa’s current application for a student visa. There is evidence before me that Mr De Sousa continues to study his Business course which is due for completion later this year. I find Mr Maron’s submissions persuasive and consider the applicant and her partner have been disadvantaged by the delays they have experienced.
The applicant then gave evidence that she would like to study onshore.
The Tribunal undertook a PRISMS search on 10 February 2025 which confirms the applicant is currently enrolled in a General English course and an IELTS Preparation course – those enrolments having been created on 7 February 2025.
Department policy states that if an applicant is no longer a member of the family unit of a person who has satisfied the primary criteria, the applicant may seek themselves to be assessed against the primary criteria before their application can be refused. If the applicant satisfies all primary criteria, the delegate must grant a visa on this basis. This is in line with the view taken by the Department in Subclass 57X cases.
The determinative issue in the applicant’s case has changed, the question of whether the applicant meets the criteria under clause 500.211, rather than clause 500.311, has become determinative for the purposes of the case before the Tribunal.
Having had regard to the applicant’s circumstances and all other relevant matters, the applicant is enrolled in a course of study and satisfies clause 500.211 of Schedule 2 to the Regulations.
The applicant should be given the opportunity to put her case to the Department as to the remaining criteria for a student visa. It is appropriate that the delegate assess the applicant against all of the remaining criteria beyond clause 500.211.
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
The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa: clause 500.211 of Schedule 2 to the Regulations.
Date(s) of hearing: 6 February 2025
Representative for the Applicant: Mr Bimal Kumar Bhattarai