Ega (Migration)

[2020] AATA 5030

Ega (Migration) [2020] AATA 5030 (14 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Oiwodu Estella Ega

CASE NUMBER:  1905428

HOME AFFAIRS REFERENCE(S):          BCC2018/5652731

MEMBER:Andrew George

DATE:14 September 2020

PLACE OF DECISION:  Darwin

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 14 September 2020 at 5:59pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – current enrolment – education institution failed – decision under review affirmed   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 500.211, 500.214; 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 15 February 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 December 2018. 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 did not satisfy the requirements of cl.500.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant provided sufficient evidence of financial capacity.

4. The applicant appeared before the Tribunal on the date of this decision to give evidence and present arguments. The applicant was supported by Ms Fitzgerald of Charles Darwin University.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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)

7. 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.

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 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.

9. The applicant has an impressive academic history. The Departmental file contains evidence of the applicant’s:

   a.Bachelor Science (Sociology) with Honours from Ahmadu Bello University in Nigeria;

   b.Master of Social Science in Health and Society from Linkoping University in Sweden; and

   c.Doctor of Philosophy from Charles Darwin University.

10. The applicant gave candid oral evidence. This evidence was to the effect that she wished to complete a Diploma of Leadership and Management in Australia in order to commence a Non-Government Organisation in Nigeria. The applicant had been enrolled to complete this training, however the institution failed. The applicant no longer has a current enrolment. The Tribunal accepts this evidence and, accordingly, cl.500.211 is not met.

11. The Tribunal has a great deal of sympathy for the applicant’s predicament, particularly as there are merits to other aspects of the application. However, these aspects are not strictly relevant considerations where the applicant is not enrolled in a course of study as at the date of decision. The Tribunal has no relevant discretion that it may exercise in the applicant’s favour.

12. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

13. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Andrew George
    Member