Shrestha (Migration)

[2022] AATA 4477

Shrestha (Migration) [2022] AATA 4477 (3 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prakash Shrestha

REPRESENTATIVE:  Mr Hem Raj Bhatta (MARN: 1466471)

CASE NUMBER:  2115590

HOME AFFAIRS REFERENCE(S):          BCC2020/2313806

MEMBER:Vanessa Plain

DATE:3 November 2022

PLACE OF DECISION:  Melbourne

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

·cl 500.212 of Schedule 2 to the Regulations

Statement made on 03 November 2022 at 4:39pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language requirement – applicant currently enrolled in an English course – IELTS test result provided upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 500.212, 500.213; 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 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 16 September 2020. The delegate refused to grant the visa on 22 October 2021.

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 12 September 2022, the Tribunal received a COE from the applicant which provides that the applicant is currently enrolled in General English Non AQF Award course from 12 September 2022 to 10 September 2023.  On the basis of the submission of this document, the applicant consented to a determination by the Tribunal on the papers.

4. The applicant has demonstrated to the Tribunal that he is enrolled in a registered ELICOS course as defined in regulation 1.03 of the Migration Regulations 1994. On that basis, he satisfies the exemption in Legislative Instrument IMMI 18/015 cl 6(2)(b)(ii) and subclause 500.213(1) of Schedule 2 to the Regulations does not apply to him.

5. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

6. 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

7. 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

   Vanessa Plain
   Member