Virk (Migration)

[2018] AATA 4569

Virk (Migration) [2018] AATA 4569 (27 August 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Pawanpreet Kaur Virk
Miss Viyona Kaur Virk
Mr Amrinder Singh Virk

CASE NUMBER:  1816071

HOME AFFAIRS REFERENCE(S):           BCC2018/1222566

MEMBER:Mark Bishop

DATE:27 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant and second named applicants, respectively, meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.211 of Schedule 2 to the Regulations.

·Cl.500.311 of Schedule 2 to the Migration Regulations

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Statement made on 27 August 2018 at 10:44am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – proof of enrolment in a course of study provided – secondary applicants are members of the family unit of the review applicant – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.218, 500.311
Education Services for Overseas Students Act 2000

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 on 17 May 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 14 March 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.211of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant failed to provide proof of enrolment in a course of study.

4. The Tribunal resolved the review on the papers

5. The applicants were assisted in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.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.

   Enrolment (cl.500.211)

8. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

9. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

10. On 24 August 2018 the applicant provided to the Tribunal a Confirmation of Enrolment (COE) for Overseas Student in her name for enrolment in a Bachelor of Business for the period 27 August 2018 until 31 December 2021. An initial pre-paid tuition fee of $5,625 was made out of tuition fees of $45,000 for the period 27 August 2018 until 27 October 2018.

11. Therefore, the Tribunal is satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is met.

    Secondary applicants Viyona Kaur VIRK and Amrinder Singh VIRK

12. The above named secondary applicants are members of the family unit of the review applicant. He is the holder of a student visa. Accordingly the secondary applicants meet the requirements of cl.500.311 of Schedule 2 to the Migration Regulations.

13. 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

14. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant and second named applicants, respectively,  meet the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.211 of Schedule 2 to the Regulations.

    ·Cl.500.311 of Schedule 2 to the Regulations.

    Mark Bishop
    Member