Tsengel (Migration)

[2019] AATA 4855

Tsengel (Migration) [2019] AATA 4855 (12 August 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mrs Tuya Tsengel

Mr Ganzorig Purevsamba Master Onol Ganzorig Miss Uudlun Ganzorig

CASE NUMBER:  1914272

DIBP REFERENCE(S):  BCC2019/1457488

MEMBER:  Meredith Jackson

DATE AND TIME OF

ORAL DECISION AND REASONS:          12 August 2019 at 11:14 am (QLD time)

DATE OF WRITTEN RECORD:               30 August 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.213 of Schedule 2 to the Regulations.

The secondary applicants to be reconsidered on the basis of the remit of the primary applicant

Statement made on 30 August 2019 at 12:18pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – English language proficiency – evidence provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 500.213

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 29 May 2019 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

1. At the hearing on 12 August 2019 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 Tribunal case number 1914272, Mrs Tuya Tsengel. It is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant you a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). You applied for the visa on 22 March 2019. The delegate refused to grant the visa on 29 May 2019. The delegate made the decision on the basis that you do not meet the English language proficiency requirements as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

1. On 12 August 2019 the Tribunal received from you an IELTS test report form issued to you on 8 August 2019 for an English language test taken by you on 27 July 2019. The test, an IELTS test, is a specified test in the legislative instrument. The test report stated that you had achieved an overall band score of 5.5 which is the minimum score that an applicant is required to achieve in an IELTS test where the package of courses undertaken does not include ELICOS. In your case you are not enrolled  to  study ELICOS further and are enrolled to study two vocational courses.

1. The Tribunal notes you have provided evidence that you completed an English language course over an enrolment period between 21 May 2018 and 1 February 2019. In the hearing the Tribunal asked whether your two children Onol Ganzorig and Uudlun Ganzorig, who are secondary applicants, are onshore and you stated that they are in Mongolia pending the outcome of the review but it is your intention that they will return if the visa is granted.

1. 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 consideration.

1. 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.

DECISION

1. The Tribunal remits the applications for Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student ) visa:

• cl. 500.213 of Schedule 2 to the Regulations.

The secondary applicants to be reconsidered on the basis of the remit of the primary applicant

Meredith Jackson Member