Wijesinghe (Migration)

[2022] AATA 930

Wijesinghe (Migration) [2022] AATA 930 (21 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wasala Rajakarunadhipathige Thilina Wijesinghe

REPRESENTATIVE:  Mr Manjula Ranasinghe (MARN: 1572310)

CASE NUMBER:  2116941

HOME AFFAIRS REFERENCE(S):          BCC2021/390696

MEMBER:Gabrielle Cullen

DATE:21 March 2022

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 500.211 of Schedule 2 to the Regulations

·cl 500.215 of Schedule 2 to the Regulations

Statement made on 21 March 2022 at 1:07pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – health insurance – no current enrolment – details of Overseas Student Health Cover provided upon review – enrolment details updated – decision under review remitted

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2 cls 500.111, 500.211, 500.215; 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 on 29 October 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 14 March 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). 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 visa on the basis that the applicant had not provided evidence of adequate arrangements for health insurance as required by cl 500.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. The issue in the present case is whether the applicant has given evidence of adequate arrangements for health insurance during the period of the applicant's intended stay in Australia, as provided for in cl 500.215.

7. A further issue arising is whether the applicant satisfies cl 500.211, which relevantly requires at the time of this decision that 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.

8. ‘Course of study’ is relevantly defined in cl 500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in reg 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 (Cth), to provide the course to overseas students.

9. On 10 December 2021, the Tribunal received evidence from the applicant which indicates that he is enrolled in the following courses:

   ·General English (Starter, Elementary, Pre-Intermediate, Intermediate, Upper intermediate, Advanced) from 13 December 2021 to 24 June 2022.

   ·Diploma of Leadership and Management from 1 August 2022 to 30 July 2023.

   ·Advanced Diploma of Leadership and Management from 28 August 2023 to 25 August 2024.

10. The applicant also provided evidence of Overseas Student Health Cover (OSHC) for the period 9 December 2021 to 25 October 2024 with AHM OSHC. 

11. Based on the available evidence, 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. The Tribunal is also satisfied that at the time of this decision, the applicant has provided evidence of adequate arrangements for health insurance during the period of his intended stay in Australia, and accordingly cl 500.215 is also met.

12. As the Tribunal is satisfied that these criteria are met, it has concluded that the matter should be remitted for reconsideration.

13. In reaching this 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, as provided for in s 360(2)(a) of the Act.

    DECISION

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

    ·cl 500.211 of Schedule 2 to the Regulations

    ·cl 500.215 of Schedule 2 to the Regulations

    Gabrielle Cullen
    Member