OGBONNA (Migration)

[2018] AATA 4782

OGBONNA (Migration) [2018] AATA 4782 (18 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Precious Chioma OGBONNA

CASE NUMBER:  1713329

HOME AFFAIRS REFERENCE(S):           BCC2017/403408

MEMBER:Mara Moustafine

DATE:18 October 2018

PLACE OF DECISION:  Sydney

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

·cl.500.211 of Schedule 2 to the Regulations.

Statement made on 18 October 2018 at 11:18am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – course enrolment  – PRIMS record – evidence of course enrolment – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 500.211

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 Immigration and Border Protection on 2 June 2017 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 31 January 2017. 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.500.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she failed to provide evidence of enrolment in a course of study, as required for the grant of a student visa.

4. The applicant was assisted in relation to the review by their registered migration agent.

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

   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. The issue in the present case is whether at the time of decision the applicant is enrolled in a course of study.

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 lodged an application for a Higher Education TU-500 visa on 31 January 2017 to undertake a Bachelor of Nursing and provided a Confirmation of Enrolment (COEs) from 13 February 2017 to 31 December 2017. On 22 March 2017 her COE was cancelled due to non-payment of fees. On 18 April 2017 the applicant was requested to provide a COE for intended study and on 1 May 2017 she was given a further 28 days to provide a COE for her intended study. However, at the time the delegate made her decision on 2 June 2017 the applicant had not provided a COE or any evidence that she was enrolled in a course of study. Therefore, her applicant for a Student visa was refused.

10. The applicant applied to the Tribunal for a review of that decision on 22 June 2017.

11. On 31 July 2017 the applicant’s migration agent provided submissions regarding the circumstances which had resulted in her failing to pay her fees. 

12. A review of the applicant’s Provider Registration and International Student Management System (PRISMS) record by the Tribunal on 17 October 2018 indicates that the applicant is currently enrolled in a Bachelor of Nursing at Avondale College (12/02/2018 to 15/12 /2019) and her Confirmation of Enrolment, created on 13 February 2018, indicates an initial prepayment of tuition fees of $11,536. 

13. 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.

14. After considering the available evidence, the Tribunal found that pursuant to section 360(2)(a) of the Act, it should decide the review in the applicant’s favour. Therefore no hearing was required.

15. 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

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

    ·cl.500.211 of Schedule 2 to the Regulations.

    Mara Moustafine
    Member