ali (Migration)

[2017] AATA 2631

ali (Migration) [2017] AATA 2631 (4 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Afshan Gulzar Ali

CASE NUMBER:  1617867

DIBP REFERENCE(S):  BCC2016/2908459

MEMBER:David Barker

DATE:4 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 04 December 2017 at 7:10am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa –  Subclass 500 (Student) – Financial capacity – Father provided financial support – Stays with brother – Completed Higher Education studies in Australia –  Seeking to apply for a temporary work visa in the future – No further  offer of enrolment

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958 s 65
Migration Regulations 1994 r 1.03 Schedule 2 cls 500.111, 500.211-500.218

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 on 7 October 2016 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 1 September 2016. 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 when lodging her visa application, the applicant was prompted to provide evidence of her financial capacity, including funds that were sufficient to meet the costs and expenses of her intended stay in Australia. the delegate noted that at the time of his decision in October 2016, the applicant had not provided any evidence of her financial capacity. As a result, the delegate made a finding she did not meet 500.214.

4. The applicant appeared before the Tribunal on 30 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from her brother, with whom she resided in Australia.

5. The applicant gave oral evidence, which was consistent with written submissions she has provided to the Tribunal with her review application. In her written submissions, dated 27 November 2017, the applicant states:

   I applied for a Student (Temporary) (class TU) Student (subclass 500) visa on 01 September 2016. On 07 October 2016, I received a notification of refusal for this visa. On 27 October 2016, I lodged a merit review application in Administrative Appeal Tribunal against this decision. My Student visa was refused because I did not satisfy clause 500.214 in Schedule 2 of the Migration Regulations.

   I believe that Natural Justice was not applied in my visa application process and delegate made a harsh decision without giving me opportunity to provide evidence. I request the Honourable member to consider the following facts and restore my student visa.

   Academic Records
   I arrived Australia on February 2014. I was enrolled English Academic Level 3 which I successfully completed on 06 June 2014. On 28 July 2014, I started Master in Accounting (Professional) from Macquarie University which was successfully completed on 01 August 2016. On 07 November 2016, I enrolled in Graduate Diploma of Business which I successfully completed on 31 March 2017. I completed all my courses during their required timeframe. I always complied to my previous visas and its conditions. I never overstayed, breached any visa conditions, never worked more than 20 hours per week, always paid my fees in due time and do not have commonwealth or any other financial institution debt. I do not have any criminal record or conviction against my name.

   Financial Capacity

   My father provided me financial support during my stay in Australia. I stayed with my brother [name supplied] who provided me accommodation and helped me in my living expenses in Australia. I already paid fees for Graduate Diploma in Business who visa was refused due to financial documents, all the fees for the duration of the course was paid in advance and confirmation of enrolment and fee paid receipt was provided to the department when I applied for visa. I applied my student visa through Student Consultant and he did not ask me to provide any financial evidence to support my visa application. I also provided the support letter from my brother to cover the living expense which I believe was sufficient requirement to fulfil financial requirement of the visa.

   I am unable to understand why department took such a harsh decision to refuse my visa when I provided all the required documents. Furthermore, department has not provided me any opportunity to provide any documents which they may require before finalising the decision. I am attaching financial documents which includes bank statements of my father, reference letter from my brother which proves that I have financial capacity not only for the course but to fulfil my future study plans, the documents provided are; Saving certificates, bank reference letter, which all shows that I was capable to afford tuition fee plus my living expenses in Australia. 

   Future Plans
   If my visa is restored I have an opportunity to complete my professional year in Australia which helps me in gaining suitable employment in my home country and aboard. After completing my Graduate Diploma course in Business I searched for different opportunities and I got positive response from different companies regarding internship/work experience and full time employment. As I am on bridging visa and waiting for AAT hearing therefore I cannot persuade for full time employment. I came from Pakistan from a cosmopolitan city where education for woman is highly regarded and considered as a privilege. I am the first female from my family who successfully reached to Master level and I feel proud of my achievement. There are plenty of job opportunities for me in Pakistan if I gain some work experience from Australia. I have passion for studies and want to purse my career in Accounting/business field. Australian qualification is worldwide recognised and considered as highly valuable in Pakistan. If department of Immigration give me opportunity and restore my visa, it would be very beneficial for my future career and increase my job prospects. I strongly believe in woman empowerment and believe that woman should take part in every sphere of life and especially country like Pakistan where women are supressed I will be a ray of hope and role model for woman who achieve their goals against all odds.

   The visa refusal has greatly impacted on my future as I was planning to complete my professional year and apply for Student Graduate visa subclass 485 to gain some valuable experience and to make the full use of my excellent academic achievement. I request the Honourable Member to consider all above mentioned facts and review the decision of the department that was unfair, unjust and affects my future and career.

6. The applicant acknowledged she is not currently studying in a course in Australia and has no offer of enrolment.  She confirmed she completed her Master’s Degree in Accounting at Macquarie University in August 2016 and then undertook a Graduate Diploma of Business, which she successfully completed in march 2017.  She said she has been unsuccessful in subsequent efforts she has made to apply for internship positions because potential employers have not been interested in offering her an internship because of her uncertain visa situation.  She said she wants to apply for a subclass 485 Temporary Work visa, but cannot do so because of the Department’s refusal of her Subclass 500 Student visa.  She said it is every international student’s right to apply for a Subclass 485 visa, after they complete their studies, but she has not been able to do so.

7. The applicant gave evidence the documents she has provided to the Tribunal in relation to her financial capacity, being the investments and account balances in Pakistan financial institutions, show there was sufficient financial capacity at the time she applied for the Student visa on 1 September 2014.  She said she did not provide these documents to the Department because she was advised the letter from her brother guarantying his financial support for her would be sufficient.  She said she lives with her brother who pays her living expenses and also has assisted with the payment of her course fees.  The oral evidence from her brother was consistent in relation to this issue.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. At the start of the applicant’s hearing, the Tribunal explained to her it would be considering a range of issues in relation to whether she met the criteria to be granted a Student visa, including whether she is currently enrolled in and undertaking study in a course.

10. 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.

11. The issue before the delegate was whether the applicant met the criterion in cl.500.214. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a Student visa.

12. 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.

13. ‘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.

14. The Tribunal has carefully considered the evidence provided with the applicant’s visa and review applications.  The Tribunal accepts the applicant has made academic progress whilst she has undertaken courses in Academic English, Accounting and Business in Australia. However, the evidence before the Tribunal is that the applicant completed studies in March 2017.  The Tribunal notes the documents provided by the applicant with her review application indicates the applicant completed the course requirements of the Master of Accounting (Professional) in August 2016 and that she completed a Graduate Diploma of Business in March 2017. The applicant said she has not undertaken further study since March 2017 and the Tribunal accepts this evidence. 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.

15. 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

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

    David Barker
    Member