Chikweu (Migration)

[2020] AATA 4823

Chikweu (Migration) [2020] AATA 4823 (23 October 2020)

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DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Edina Chikweu

CASE NUMBER:  1912274

DIBP REFERENCE(S):  BCC2019/447278

MEMBER:  Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:          23 October 2020 at 11:40 am (WA time)

DATE OF WRITTEN RECORD:                11 November 2020

PLACE OF DECISION:  Perth

DECISION:  The Tribunal affirms the decision under review.

Statement made on 11 November 2020 at 3:28pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – evidence of financial capacity – extensive study history – no current enrolment – letter of offer and offer of part-scholarship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 500.211(a)

APPLICATION FOR REVIEW

MEMBER: This is an oral decision in the matter of Edina Chikwea file number 1912274.

1. If required to do so by the Minister in writing or by computer program at any time you must give the Minister evidence of financial capacity that satisfies the requirements specified by a legislative instrument. And you were required to give the Minister evidence of that financial capacity to satisfy the requirements of the legislative instrument.

1. You were required to provide the Minister with evidence of sufficient funds to meet your travel expenses, your living costs, and your annual course fees. The Department have calculated your total costs to be expenses of Australian $21,290.

1. You provided a letter of financial support from a gentleman called Dean Griffiths. I note that you nominated Mr Griffiths as a witness for you today. I have not received evidence from  him for reasons I will outline. You provided lending application review forms from the Rural Bank in the name of Coral Griffiths and Dean Griffiths. A farm lease agreement, a payslip, and a list of assets.

1. But as the documents did not show a dated current available balance of funds they could not be expected. The delegate was not satisfied that you have provided evidence of sufficient funds to meet your travel expenses, your living costs, and your annual course fees.

1. To satisfy the financial requirements specific by legislative instrument you may have provided evidence that your financial sponsor has a personal annual income that is above

   $60,000 Australian in the form of official government documentation of personal income that has been issued in the 12 months before the application was made. You provided the 2018 individual tax return for Mr Griffiths. But that document was considered not to be an official government notice of assessment and was not acceptable.

1. You were considered not to meet the Australian $60,000 personal annual income required to satisfy the financial requirement. Considered as a whole the delegate was not satisfied that you have sufficient evidence of financial capacity as required by the legislative instrument.

1. So, in a nutshell they were the reasons your initial application was refused. I have explained to you that my role in this hearing is to consider everything you provided to the Department and to the tribunal. I should say this, my decision is time of decision, that being this  tribunal’s decision. It is not whether the decision made by the delegate back in May of last year was correct or incorrect. I am conducting what is called a de novo hearing, which is a hearing from the beginning. What that means is I have to be satisfied as of the time that I give my decision being now that you satisfy the requirements.

1. So, I have considered the evidence that you have given and all of those documents. You were not represented today. And I have got to make my own decision as if I were the  original decision maker, as I have just said. I have had to apply the same laws and the regulations that the delegate from immigration did. I arranged for you to attend a hearing by telephone because I could not make a decision based upon what was before me without hearing from you and where necessary any witnesses. I wanted you to have the opportunity to give evidence and present arguments as to why this visa should be granted.

1. Obviously, the hearing was held by phone. In doing that, my preference being to speak to people face to face, I had to consider if it was reasonable to hold a hearing by telephone having regard to the nature of your particular matter, your individual circumstances, the importance of providing a review that is fair, that is just, economical and quick. I had to

consider whether to delay the hearing because of the COVID-19 situation. And my assessment is that it will be some period of time before the restrictions are relaxed sufficiently so that I can provide hearings in person on a more regular basis. I have decided that I was able to give you a hearing that was fair and just. You expressed no concern to  me. There was no need for an interpreter. I was able to understand you quite clearly.

1. It is important that I outline the documents that are before me. I am aware of the documents before the Department, but these were the other documents. There was a decision record that I have just read out. There was your application to the tribunal and you made that application for review to this tribunal within four days of the decision. I make no adverse comment about that.

1. I have what are called the PRISMS records, which are current as of 20 October 2020. When I say “PRISMS” what I mean is the Department’s records of your enrolments and your progress in those courses. And I think it is important in your case to go through those. It appears you were initially enrolled soon after entry in a course called the Diploma of Christian Ministry.   That was to commence on 9 February 2004 and to be completed by      5 December 2005, that enrolment was cancelled.

1. There was a general English course to commence 3 January 2006 to end 21 April 2006, you finished that. There was a Certificate II in English to commence 23 May 2006 to end on 29 June 2007 and you cancelled that enrolment. There was a general English course to commence 24 May 2006 end on 19 January 2007 and you cancelled that. A Certificate I in English, which you were due to start I think on 24 July 2006 to end on 29 June 2007, you cancelled that. A Certificate II in English to commence 15 February 2007 and to end on 1 February 2008 and it looks like you finished that. There was a Certificate III in English to commence 18 February 2007 and to end 21 November 2007, you cancelled enrolment in that. A Certificate III in English to commence 18 February 2007 to end 21 November 2007, you cancelled that enrolment.

1. English for Academic Purposes to commence 4 February 2008 to finish on 27 June 2008, that enrolment was cancelled. A Certificate III in English to commence 18 February 2008 to end on 21 November 2008, you cancelled that enrolment. General English to commence 18 February 2008 and to end on 11 April 2008, you did finish that. A Certificate IV in Ministry, that was to commence on 4 March 2008 and to finish on 31 December 2008, you cancelled that enrolment. English  for  Academic  Purposes  to  commence  21 April  2008  to  finish  27 June 2008, you did finish that.

1. A Diploma of Nursing to commence 17 July 2008 and finish on 10 December 2010, you did finish that. A Diploma of Nursing Enrolled to commence 31 January 2011 to end on 1 July 2011, you cancelled enrolment in that. A Diploma of Nursing Enrolled division 2 nursing, you were to commence that on 31 January 2011 and to end 9 December 2011, you cancelled enrolment.

1. A Diploma of Community Services Work, this is a bit of a departure, that was to commence 7 February 2011 and was to end on 7 December 2012, you cancelled enrolment. A Diploma  of Science, Health Studies, that was to commence on 16 February 2011 to end on 21 January 2012, you cancelled enrolment. A Diploma of Science Health Studies it was to commence 5 October 2011 and to end on 25 May 2012, you cancelled enrolment.

1. A Bachelor of Health Science it was to commence 6 February 2012 and to end on 15 July 2014, you cancelled that enrolment. A Bachelor of Health Science, that was due to commence 6 February 2012 and finish on 15 July 2014, you cancelled enrolment. General English, so we have a departure again from direction of course back to English. General English was to commence 12 March 2012 to finish on 13 April 2012, you did finish that.

Diploma of Science Health Studies to commence 13 June 2012 to finish 18 January 2013, you did finish that.

1. A Bachelor of Science and Biomedical Science, that was to commence 9 July 2012 and to end on 31 December 2014, you cancelled enrolment. A Diploma of Science Health Studies, that was to commence 19 January 2013 and to finish 24 May 2013, you did finish that. A Bachelor of Science was to commence 11 February 2013 to end 15 July 2015, you cancelled enrolment. A Bachelor of Science Biomedical Science was to commence 15 July 2013 to end 31 December 2015, you cancelled enrolment in that. A Bachelor of Science Biomedical Science to commence 29 July 2013 to finish 1 December 2015, that enrolment was cancelled.

1. A Bachelor of Social Science to commence 27 July 2015 to finish 15 July 2018, that enrolment was cancelled. It seems the same course Bachelor of Social Science 27 July 2015 to end 15 July 2018, you did finish that. There was another Bachelor of Social Science to commence 30 July 2018 to finish 31 December 2018, that was cancelled.

1. And finally, this is the most recent study that you undertook or completed was the Bachelor of Social Science that you had cancelled earlier. That was to start on 30 July 2018 and  finish on 31 December 2019. And I am satisfied you did finish that. Since finishing that course the most latter course you have not held a confirmation of enrolment.

1. There were, of course, other documents before me. Your movement records which indicate that you arrived into Australia for the first time on Christmas Day 2005. You departed many years later on 17 April 2012 for about six weeks. You came back again on 2 June 2012 and you have not departed since. So from those movement records over the last 15 years you have only departed Australia for a matter of a few weeks. There are no indications any members of your family have been to Australia to see you.

1. You have clearly been able to support yourself to some extent by the fact of having completed so many courses of study. I indicated to you that whilst my experience in this particular class of visa reviews was not extensive that I had not seen anybody with such an extensive enrolment record as you have. I make the observation that this type of visa, a student visa is what is a temporary visa allowing a temporary stay for a period to enable completion of studies to the betterment of the particular student. It is a requirement that under the particular visa that students be enrolled in a registered course of study at all times.

1. They are your movement records. I indicated that on 17 September 2020 this tribunal  issued its invitation to you to attend a hearing at my request. The invitation indicated that on the material before the tribunal it could not make a favourable decision on the information alone and that you were invited to attend a hearing.

1. In the invitation on page 2 it indicated that you should read and complete the response to the hearing invitation and return it within seven days of receipt of the invitation and that at least seven days before the hearing all documents you intend to rely on to establish that you meet the criteria for the visa. Now, the criteria for the visa are not solely that you satisfy the financial requirements. The requirement for the visa includes such things as having a  current confirmation of enrolment.

1. The invitation indicated the decision from the Department to refuse a visa should set out the reasons why you did not meet the criteria and that you should have regard to these and any changes in your circumstances in providing documents and preparing for the hearing.

1. Specifically you were requested to provide the following information and that is a copy of your current confirmation of enrolment or other documents that show that you are currently

enrolled in course of study as defined in clause 500.111 and as required by clause 500.211(a) of schedule 2 to the Migration Regulations for the grant of the visa as well as documents showing the fees charged by your course provider for your current course of study and any payments of those fees that you have made.

1. It indicated that you provide documents showing your past studies in Australia and you have done that, and I will deal with those in a minute. It was requested you provide information being documents that demonstrate that you do have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of any family unit. You do not have a family unit.

1. So, the issue identified by the Department was this issue about your financial capacity. It’s clear to me that certainly from the date the Department gave its decision on 13 May 2019 you were put on notice that there were issues concerning your capacity to pay. You then applied to the tribunal for review and you must then have been aware of the importance of this issue about your financial capacity to pay for your living expenses, your travel, and your studies.

1. You have provided nothing of any particular weight or value to this tribunal for the hearing today upon which it could determine your capacity to pay. Even if you had been able to provide a certificate of enrolment there was no sufficient evidence before me upon which I could make a finding in your favour as to your capacity to pay. You did not provide any documents or information in the form that is required to do so. And the evidence of financial capacity are actually specified in the instrument and they needed to be evidence of a money deposit with a financial institution or a loan with a financial institution, government loans, a scholarship or financial support.

1. I give some credit to the letter concerning a scholarship and I will address that in a moment. But I note that the scholarship is for an amount of about 20 per cent of the required fees in any event.

1. So it is clear to me that certainly as at the time you received this invitation to come to this hearing today, and the invitation was sent out on 17 September 2020, that you were well and truly on notice that for this tribunal an issue would be whether you had a current certificate of enrolment in a registered course of study as defined.

1. There were other documents and that was the confirmation or certificate of accomplishment of the general and academic English course you studied between 16 January 2006 and 5 May 2006 through the International English Centre. It is dated 5 May 2006 and I accept that as genuine. A certificate of achievement from the International College Oceania regarding your completion of a course in general English on 22 May 2006 to 22 December 2006.

1. A certificate confirming fulfilment of the requirements for the Certificate II in English Language dated 23 November 2007, that was with the Bible College of Western Australia. TAFE WA West Coast a Certificate in Aged Care Work dated 27 January 2009. West Coast Institute of Training a Certificate IV in Health Science Foundation dated 26 October 2010. Edith Cowan University a Diploma of Science Health Studies 4 June 2013, I accept that as genuine.

1. The most recent qualification a Bachelor of Social Science a major in Human Services through Edith Cowan University dated 12 December last year. And that is the most recent course of study that you have participated in and completed. You have not studied during 2020. You were last enrolled in a course at or about that date December 2019.

1. Your visitor visa must have been refused sometime in May of 2019 and you have been subject to a bridging visa since then. I’ve seen a letter from a witness called Evanes Pemferro Nyalugwe. The letter tells me this that the writer is Malawian student. She’s giving information about a miserable and distressful life that you have had. That she arrived into Australia in June 2005 on a student visa. After settling she managed to know some fellow Malawians, including your cousin. When you arrived on Christmas Day 2005 you were introduced to her by your cousin. She became close to you

1. She says that the root of your trouble was that your cousin had another friend who used to come to your house frequently and due to his frequent visits this person developed an interest in you knowing that you were single. The friendship grew very strong and the man proposed for you to be his girlfriend and you did not give a prompt answer as you needed to get permission from your cousin.

1. It says that one day you found yourself with your belongings outside of the house and you were told to leave the house where you were living, which you did, and that your cousin demanded you pay him $5,000 being money that was to be used for your student visa. It says that after you were forcefully chased from your cousin’s house you went to your boyfriend’s house and assumed that would be your next destination and home in Australia. However, there were misunderstanding and resulted in the situation where you were left alone without support.

1. It says that you are not able to support yourself and that you have a limitation of working hours of 20 hours a week because of your student visa and you have not been able to raise money for school fees, rent and daily upkeep. That you’re a lonely person, you stay alone in a unit and you suffer from depression. You are always stressed and this has had a poor effect on your performance and academic life.

1. So, I’ve taken that into account. I’ve seen a certificate of service in relation to your work. That is dated 7 October 2020. I don’t doubt that you have worked and you continue to  obtain some form of work.

1. You wrote to the tribunal on 16 October 2020 and you wanted to advise the tribunal that you might not be able to get a confirmation of enrolment in time from Edith Cowan University before the hearing. You indicate that you had enrolled. Strictly speaking that is not correct, you had applied for enrolment in a Bachelor of Social Work at Edith Cowan University and that your application for the course is still pending. You believed it may take about four weeks to process the application. You were not able to provide your current confirmation of enrolment as requested. I have taken that into consideration.

1. There was a further email yesterday Thursday, 22 October 2020 that you had received a letter from Edith Cowan University. The letter, which I have read, is as follows. It advises  that you have been awarded the 2021 international Australian alumni scholarship and that the scholarship provides 20 per cent fee reduction for the duration of the course. I understand that to mean the course that you wish to pursue, then sets out some requirements for you to accept the scholarship. It’s signed by the vice chancellor.

1. It is accompanied by a course offer and the course is at the Bunbury campus, it’s called a Bachelor of Social Work. The duration is two years, four semesters, and the course is due  to start on 22 February 2021 and to end on 31 December 2022. The current indicative fee per semester is $12,320. The total tuition fee, which would include the 20 per cent fee reduction would amount to $49,280.

1. Whilst I’m not required to give findings of fact as to the financial aspect in this decision for reasons I am about to outline it would appear to me to be a very, very hard struggle based

upon your current financial situation and your hours of work and your anticipated income for you to be able to meet that amount of money. There is no evidence in an admissible form as required for me to find that you would have that capacity. I accept that you would be entitled to recognition of prior learning for some aspects of this degree.

1. We spoke today, you acknowledged that you were aware that you could have had a representative today. You had seen a lawyer three weeks ago but the cost of having the lawyer represent and assist you was too much at $5,000.

1. I went through your immigration record with you. You acknowledged when you had first arrived and when you departed and returned. You returned in April of 2012 because of the unfortunate passing of a sister. You have acknowledged you have not left Australia for eight years. You acknowledge you have now been here for nearly 15 years. You have been on student visas this whole time.

1. You confirmed that all of the relevant documents were before me as you had supplied to the tribunal. But you did say you had not submitted your attendance records at your studies. I  do not consider that to be particularly relevant either way for my consideration.

1. You have no children. You are not currently in a relationship. You do get work on a piecemeal basis at the moment as a casual. You said to me you have a friend or friend of a friend called Dean who I have already mentioned and you believe that through this Dean you might have been able to satisfy the financial requirements.

1. You were not able to tell me how much money you believe that you would need for the first 12 months of your studies. You are renting at $250 a week. You work at Royal Perth Hospital as a patient care assistant on a casual basis but it seems you are only getting work on an occasional basis at the moment.

1. I found it concerning as to how you would be able to survive at the moment. You told me  that you do not go out and that you eat very cheap food and you are trying to save money to study your intended bachelor’s degree next year.

1. In light of such an extensive study history and enrolment history I wanted to know why you would now want to study further in light of how long you have been here 15 years. You told me that you have a desire to help people in need and to fight for social justice. You told me that over those 15 years you just enrolled from one course to another and you were suggesting that you did not have a firm plan or strategy in place as to where you were going to take those studies.

1. You confirmed that this year you have not done any studies and, of course, you have not been enrolled for all of this year. I then sought from you as to why it was that you do not have a current enrolment, confirmation of enrolment, and you told me that you did not know what to do. I found that curious, I found that difficult to understand or accept because when that decision came down from the Department on 13 May 2019 you continued to study towards completion of the Bachelor degree you were studying last year and that was at a time that you were on a bridging visa.

1. You told me that the student visa had expired in March 2019 and that you were waiting for this tribunal to conduct its process and you were waiting for a decision from the tribunal. But I consider that you must have known that even though you were waiting for a decision from the tribunal that you could study simply because whilst you were on that bridging visa in 2019 you did continue to study. I found it very difficult to accept your explanation as to why you did not study in 2020.

1. I specifically asked you why you do not have a confirmation of enrolment as of today 23 October and you said you wanted to continue your studies and that you received a letter of offer yesterday. And I accept that you did but a letter of offer is not for my purposes a confirmation of enrolment. It’s a contractual type of document where the institution has agreed that it will offer you that opportunity but you are not enrolled.

1. I again asked you why you are not enrolled and you said you are not sure if you could go back to the school without the visa. I found that curious in light of what I’ve already said, that is last year you studied for a considerable period of time on a bridging visa.

1. I then raised with you the obvious observation that you have been living here for such a long period of time 15 years and you told me that you don’t want to go home to Malawi, you felt that it would be the end of your life. You want to improve your life here and through your studies and you did not know how long it would take you to achieve your study goals.

1. I asked you what you meant by why it would be the end of you and you said to me you would not get the same opportunities back home in Malawi. You have no relatives here  in Australia. Your finances are relatively low.  You have an account with the ANZ Bank and  you believe there may be over $4,000 in that account. You have another account with the Commonwealth Bank, there may be $3,000 or so in that account. And I accept whilst there was no evidence of that apart from you telling me that there may be seven or $8,000 in your account at the moment. With due respect that is not a great deal of money upon which you can survive and pay for your studies here in Australia.

1. You also mentioned about a joint account you hold with friends at work. There may be over

   $5,000 or so in that account and that is for travel purposes of the group. Your share of that may be perhaps slightly under $1,000.

1. But I think it is fair to say you are a not a wealthy person and your access to moneys is not great. I have no other evidence before me in an admissible form as to your sources of any other moneys.

1. I then needed to give you the opportunity to consider the issue about confirmation of enrolment under section 359AA of the Act. I raised with you that the records indicated and you confirmed this yourself, that you are not currently enrolled, and your enrolment had ceased in about December of 2019. I indicated to you that that information, if accepted, would be the reason or part of the reason for affirming the decision under review by me.

1. I indicated to you that I would give you some time, if you wished, to go away and have a think about how you would respond to that, and you did go away. We came back 35  minutes or so later and I again raised this issue with you and whether you would like to say anything to me. Your response was that it was a hard question to answer for you.  You  knew that you must have a confirmation of enrolment. You did not know what to do. You wanted to first hear from the tribunal and you did not know it would take the tribunal so long to get to your matter and to make a decision. But you then qualified that and said that you did not realise that at the time you came before the tribunal you would need another confirmation of enrolment.

1. That is difficult to reconcile because, as I said, the invitation to come here issued to you on 17 September 2020 made it quite clear in my view that the certificate of enrolment or the current certificate of enrolment or other documents to show you are currently enrolled was an issue that would likely be canvassed in that hearing. So that was roughly five weeks ago that you would have been put on notice that confirmation of enrolment was an issue.

1. I asked you as we were finishing bearing in mind you have been here for 15 years what is your plan student visas being temporary visas only. I asked you that because I wanted to know when it was that you had in mind for returning to Malawi. When would the point in time be reached that you had satisfied your study interests in this country so that you could go back to Malawi to, as you claim, be of value in the social context in your home country. It is clear to me that you are not sure but you did say to me that after you get your next degree that would be possible for you.

1. I have listened carefully in relation to your answers about that and how long you have spent here in Australia and the lack of occasions you have sought to return back home to Malawi and it is clear to me that you want to stay here in Australia and that you consider Australia to be your home where you want to live your life. That is my assessment of what you have told me.

1. So I have considered all of that information individual and cumulatively, the criteria for this type of visa set out in part 500 of schedule 2 to the Regulations. The primary criteria in clause in clause 500.211 to clause 500.218 must be satisfied by at least one applicant. No family unit issues arise in your case because you are single and you have no children.

1. The issue before the delegate was whether you met the financial obligations and that was the basis upon which the application was refused. Another matter has arisen before this tribunal and that is whether you meet the strict requirements of clause 500.211. Clause

   500.211 requires that at the time of me giving this decision that you are enrolled in a course of study; the provision is clause 500.211(a). You do not claim to meet any of the other alternative criteria in clause 500.211.

1. Course of study is relevantly defined in clause 500.111 of the Regulations as a fulltime registered course. Registered course is defined in regulation 1.03 of the Regulations as a course of education or training provided by an institution or 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.

1. The tribunal raised this with you, the requirement of enrolment, and referred to this several times during the hearing. You confirmed you were not currently enrolled and you gave explanations for that. I have considered your responses as to why you were not enrolled. The evidence from you and the PRISMS record is that your last enrolment would have finished on 31 December 2019 when you finished the Bachelor of Social Science degree. I gave you half an hour or so to think about how you would respond to that particular issue.

1. You have not provided me with any evidence to suggest that you are currently enrolled and I have considered your evidence or explanation as to why you are not enrolled but that does not persuade me in any degree that there are any extenuating or compelling reasons why you are not enrolled as of today. I am not satisfied that at time of this decision that you are enrolled in a course of study and clause 500.211 is not met.

1. Given those findings I find that the criteria for the grant of the subclass 500 student visa are not met and you do not claim to meet the criteria for a subclass 590 student guardian visa. Accordingly, the decision under review must be affirmed. And the tribunal affirms the decision not to grant the Student (Temporary) (Class TU) visa.

END OF ORAL DECISION

Michael Judd Member