Shah (Migration)

[2023] AATA 3562

Shah (Migration) [2023] AATA 3562 (24 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amit Dilip  Shah

CASE NUMBER:  2310336

HOME AFFAIRS REFERENCE(S):          BCC2023/788734

MEMBER:Penelope Hunter

DATE:24 October 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·cl 500.213 of Schedule 2 to the Regulations

Statement made on 24 October 2023 at 2:30pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language ability – specified test score report provided to tribunal – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.213

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 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 11 May 2023. The delegate refused to grant the visa on 3 July 2023.

2. The delegate made the decision on the basis that evidence of English language ability was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

3. On 4 September 2023, in response to a request for information from the Tribunal, the applicant submitted a Pearson PTE Academic Score Report for a test undertaken on 1 September 2023. This recorded that the applicant had received an overall score of 55. Taking into consideration the applicant’s enrolment in the Graduate Diploma of Management, this is above the minimum score of 42, as is required by the relevant legislative instrument; Migration (IMMI 18/015: English Language Tests and Evidence of Exemptions for Subclass 500 (Student) Visa) Instrument 2018, for the purposes of cl 500.213 of Schedule 2 to the Regulations.

4. In light of the new evidence received, the Tribunal is satisfied that the criterion in cl 500.213 of Schedule 2 to the Regulations is met and has concluded that the matter should be remitted for reconsideration.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   DECISION

6. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

   ·cl 500.213 of Schedule 2 to the Regulations

   Penelope Hunter
   Member