Mwaura (Migration)

[2021] AATA 892

Mwaura (Migration) [2021] AATA 892 (19 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gideon Mbogo Mwaura

CASE NUMBER:  1907715

HOME AFFAIRS REFERENCE(S):          BCC2018/5107151

MEMBER:Wendy Banfield

DATE:19 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 19 January 2021 at 1:42pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine access to fund – genuine temporary entrant criterion not met–not currently enrolled in a registered course of study –no current confirmation of enrolment– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.214

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 20 March 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 16 November 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 applicant did not provide evidence of genuine access to sufficient funds to support his studies in Australia.

4. The applicant appeared before the Tribunal on 11 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Tanya Liddell, the applicant’s work supervisor and William Gichuhi, a mentor in the Australian/Kenyan community.  

5. During the hearing the applicant provided evidence regarding his study history in Australia and the reasons why he was not enrolled to study. His witnesses gave evidence regarding their belief that the applicant should be given the opportunity to study nursing in Australia.

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

   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. The issue in the present case is whether the applicant is enrolled in a course of study, as required for the grant of a Student visa.

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 2 November 2020 the Tribunal wrote to the applicant and advised that according to the Provider Registration and International Student Management System (PRISMS), he was not enrolled in a course of study. On 15 November 2020 the applicant responded and confirmed he was not currently enrolled. The applicant advised his application to study at Flinders University had been declined and it was his belief that it was due to his visa status rather than “the reason stated (course progression)”.

11. On 19 November 2020 the applicant was invited to attend a hearing scheduled for 7 December 2020. The applicant requested an in-person hearing which the Tribunal agreed to and the hearing date was changed to 11 December 2020 in Adelaide. The invitation asked the applicant to provide a copy of a current Confirmation of Enrolment (COE) or other documents that show he is currently enrolled in a course of study as defined in cl.500.211(a) of the Migration Regulations 1994. The applicant was advised that a COE is required for the grant of a student visa. The applicant did not submit a COE as requested.

12. At the Tribunal hearing on 11 December 2020 the applicant was advised that in order to be eligible for a student visa, he must be enrolled in an approved course of study at the time of decision. The applicant did not provide evidence of enrolment or other documents that show he is enrolled in an approved course of study. The applicant requested time after the hearing to provide a letter offer from either Flinders University or the University of South Australia and the Tribunal agreed to the request.

13. On 4 January 2021 the applicant requested an extension of time until 8 January 2021 to submit evidence. The Tribunal did not receive any further submissions. On 18 January 2021 the Tribunal contacted the applicant by email:

    We note that you requested an extension of time until 8 January 2021 to provide evidence of enrolment.

    It is now 18 January 2021 and the Tribunal has not received post hearing documentation that demonstrates you are enrolled to study, which is a requirement for the grant of a Student visa.

    If you have information that demonstrates you are enrolled to study, you should provide this as soon as possible as it is open to the Member to make a decision on the review based on the material currently before the Tribunal.

14. The applicant responded on the same day and requested a further extension of time:

    Thank you for the patience your department has accorded me in this matter. I unfortunately had to wait until the University resumed operations on Monday (11/01/2021) in order to get feedback on my application. While I am glad to state that the application is still under review, unfortunately I'm not yet in a position to send to the department the results of the outcome. I do expect this to be finalised soon as the course commences late next month. I hope the department will be kind enough to bear with me for an additional week within which I should be able to provide a definite answer on the matter. It is my hope that this will be granted

15. The Tribunal refused the applicant’s request for another extension of time. The Tribunal considers the applicant has had ample opportunity to enrol in a course of study. He did not provide a COE or a letter of offer by 8 January 2021 as required, or by 18 January when the Tribunal contacted him with a final opportunity to submit evidence of enrolment.

16. The Tribunal has considered the evidence in this case and although the applicant has provided some reasons for his situation, enrolment in a course of study is a mandatory requirement for the grant of a student visa and the Tribunal does not have discretion in this regard. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

17. 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

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

    Wendy Banfield
    Member