Devi (Migration)

[2021] AATA 762

Devi (Migration) [2021] AATA 762 (4 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Rita Rovina Devi

CASE NUMBER:  1907269

HOME AFFAIRS REFERENCE(S):          BCC2018/5191245

MEMBER:David Barker

DATE:4 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 04 January 2021 at 9:14am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–applicant had been offshore – adequate evidence of financial capacity–not currently enrolled in a registered course of study –no current confirmation of enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 376
Migration Regulations 1994, r 1.03, Schedule 2, cl 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 19 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 21 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 they were not satisfied that adequate evidence of financial capacity was submitted or uploaded by the time the decision on this application was made by the delegate in March 2019.

4. The applicant departed Australia on 24 August 2019 and returned to Fiji.  She contacted the Tribunal  on 1 October  2019 and advised that she could not return to Australia as her flight was cancelled and her Bridging visa had ceased.  She indicated that she had applied for a Visitor visa, but that this application was refused.

5. On 5 November 2020 the Tribunal  wrote to the applicant  seeking clarification if she wished to proceed with her review application, given she had been offshore, without return rights since August 2019. The applicant responded with an indication that she wished  the Tribunal  to proceed with the review and  provided contact details to link her to the hearing by telephone. During a conversation with a Tribunal  officer on 20 November 2020 the applicant   is reported to had indicated she is studying an online course, for which she had paid a lot of fees.

6. The hearing invitation sent to the applicant  put her on notice that the Tribunal  may during the review consider whether she met criteria for the grant  of a  Subclass 500 (Student) visa including: enrolment, genuine temporary entrant and access to funds from an acceptable source criteria.

7. The applicant participated by teleconference to give evidence and present arguments to the Tribunal  on 8 Dec ember 2020.

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

   BACKGROUND

9. The applicant is a national of Fiji and is 34 years of age.  The applicant  first arrived in Australia on a was granted a (Subclass 600) Visitor visa in in May 2016, which was valid until June 2016. She returned to Australia on a  further (Subclass 600) Visitor visa in April 2017, which was valid until December 2018.

10. At the time of application for a Subclass 500 (Student) visa the applicant  had enrolled in a  Certificate IV and Diploma of Marketing and Communication. As part of the processing of the subclass 500 Student visa application which is the focus of the current review, the applicant was asked by the Department to provide information, including in relation to her financial capacity to support her education and associated living costs.  The delegate was not satisfied the applicant provided evidence of a type or quantity to demonstrate she had access from funds from an acceptable source to support her education.

11. The Tribunal  received a written statement from the applicant on 27 March 2019 which stated that she wished to appeal the decision to refuse her Student visa application and that she wished to continue her studies.  She stated that had two children, then aged 10 and seven years and that she was on a Bridging visa which had a restriction on her travel to her home country.

12. At hearing the Tribunal  brought to the attention of a Certificate issued by the Department under s.376 of the Act.  The Tribunal  sought submissions from the applicant as to the validity of  the Certificate indicating it claimed that the release of documents  specified in the Certificate was not in the public interest, as to do so could lead to the identification of the person who had provided the information and requested that their identity remain anonymous. The applicant  submitted that the Certificate may be valid if the information  was about her studies in Australia, but that otherwise she did not  think the Certificate would be valid.  The Tribunal  considered the applicant ’s response but has determined the Certificate had provided a valid public interest reason and was otherwise set out in the required form. Notwithstanding this the Tribunal  informed the applicant  of the gist of information covered by the Certificate, namely that it contained information that alleged the applicant  had financially exploited an elderly man whilst she was in Australia.  The Tribunal  informed the applicant  that it did not consider this information relevant  to the issues under review in the current matter and that it would have no further regard for this information.

13. The Tribunal  asked the applicant  what she wished understood about her current circumstances and she provided the following information:

    ·She has a good job in Fiji and is financially secure;

    ·She has built a house in which she resides with her two children;

    ·Her education in Australia was interrupted by the refusal of her Student visa application and she would like to return to Australia to continue her studies so that she can provide a good future for her children;

    ·She is not motivated to return to Australia so that she can get a work permit or for marriage purposes;

    ·At the time she applied for the Student visa she was not  told how much money she had to demonstrate she had access to;

    ·She is currently studying a Certificate IV in Allied Health Management  course online through Open Colleges.  She has paid around $4,000 in fees for this course  .

14. In relation to her plans  and intentions  the applicant  gave evidence at hearing that she wanted the review to continue so that there would be a finalised result.  She said that if possible, she would like to return to Australia and continue her studies here.  She said that if the decision does not go in her favour that she would decide what to do then, but that she would expect her course fees to be refunded.

15. The Tribunal  put particulars of  information to the applicant to the applicant, pursuant to s.359AA of the Act, after first explaining to her this information would, subject to her comment and response, provide the reason, or part of the reason, for affirming the decision under review.  The Tribunal  advised the applicant that she could request time to consider her response and that the Tribunal  would consider any such request. 

16. The particulars of the information put to the applicant were that:

    ·The delegate from the Department refused the visa application because the evidence provided by her of her financial capacity to meet her education and associated living expenses was either not of a type specified in the relevant instrument or not of a sufficient overall amount.

    ·Other criteria which need to be satisfied include the requirement that she is currently studying or enrolled in a course of study and that this is an essential requirement that the Tribunal would consider. The Tribunal explained that a ‘Course of study’ is relevantly defined as a ‘full-time registered course’ and that a ‘Registered course’ is defined in 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.

    ·The Provider Registration and International Student Management System (PRISMS) student record indicates that:

    i.Her enrolment in a Certificate IV in Marketing was cancelled on 26 April 2019 because she had notified the education provider that she had ceased study.

    ii.There is no evidence she is current studying in a course of study of a type that would meet required criteria, or that she has a current offer of enrolment in such a course.

    iii.There is no evidence to demonstrate that she had undertaken any study in a course of study of  a type, which would meet required criteria, since April 2019.

17. The Tribunal  explained to the applicant that this information was relevant because it indicates she is not currently enrolled in a course of study.  The Tribunal  told the applicant that if the Tribunal  relies on that information it will find she does not meet a threshold requirement for the grant of a Student visa and that if the Tribunal  finds she is not studying and does not have an offer of enrolment, it will affirm the decision to refuse the Student visa. 

18. The applicant did not request any further time to consider her response and said that she is currently studying online and would provide evidence of her enrolment and of the payment of course  fees if she was given a guarantee that’s eh could return to Australia and resume her studies. She said she is secure in Fiji and has built a house on property she purchased.

19. The Tribunal  told the applicant  there would be no guarantee of a particular outcome from her review application.  In response the applicant  contended she had  adequate finance to support her study and that she was enrolled in appropriate course. The Tribunal  sought clarification if she was requesting time to provide further documentary evidence and the applicant  indicated that she was.  The Tribunal  consented to this request and provided the applicant with time following the hearing to provide further evidence or arguments in support of her claims. The Tribunal  subsequently received documents from the applicant  including:

    ·Copies of emails between applicant and Department;

    ·Copies of emails between applicant and Tribunal ;

    ·A Confirmation of Enrolment (CoE) for a Certificate IV in Allied Health Assistance  course online through Open Colleges;

    • Screenshots of Open Colleges tuition fee payment history;
    • Copy of debt collection letter, dated 14 December 2020, regarding overdue fees owed to Open Colleges;
    • Copies of emails between applicant and Open Colleges;

    ·Agreement for Lease for Residential Purpose for land in Fiji

    ·Unsigned letter, dated 14 December 2020, titled ‘Declaration Sponsorship [Student visa subclass 500], from Hermann Mahr;

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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.

21. 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.

22. 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.

23. The Tribunal  has considered the evidence contained in the Department and Tribunal  files, as well oral evidence provided by the applicant at hearing and documents received following the hearing.

24. The PRISMS record does not  show that the applicant  is currently studying enrolled in an appropriate fulltime course of study.  The applicant  claims she is studying an online course which she contends satisfies requirements for  the grant of a Student visa.  In support of this claim she has provided a confirmation of enrolment for an online course provided through an education provider ‘Open Colleges’. The record of tuition fee payments provided by the applicant indicates the email address for Open Colleges is ‘opencolleges.edu.au’.  A review of information available at this web address indicates that Open Colleges is part of Vanta Education Inc, which describes itself as one of the world’s largest education providers. The Open Colleges website indicates that their Certificate IV in Allied Health Assistance’ is offered in partnership with ‘Integrated Care & Management Training Pty Ltd’

25. ‘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.

26. The Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) has four courses  listed with the name ‘Certificate IV in Allied Health Assistance’ and a VET National Code of HLT4305.  Unfortunately, neither Open Colleges, Vanta Inc or Integrated Care & Management Training Pty Ltd are linked to any of the four courses on the CRICOS register.

27. The Tribunal  has considered the applicants claims with respect to her circumstances in Fiji and in relation to her ongoing study activity. However, on the basis of the evidence before it, the Tribunal  finds that the applicant is not currently, for the purposes of satisfying the requirements of r.1.03 and cl.500.111, enrolled in a course of study. 

28. As a consequence, the Tribunal  is not satisfied that at the time of this decision, the applicant meets cl.500.211. As the applicant  does not meet a threshold criteria for the grant  of a Subclass 500 (Student) visa, the Tribunal  did not  proceed to consider other criteria. 

29. This is because, 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

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

    David Barker
    Member

    
    

    Attachment – LIN 19/198 – Financial capacity instrument (extract)

    6 Subclause 500 (Student) visa—primary applicants

    (1)For the purposes of subclause 500.214(3) of Schedule 2 to the Regulations, a primary applicant must give to the Minister evidence of financial capacity that satisfies the requirements of subsections (2), (3), (4), (5) or (6).

    Note: For primary applicant, see section 4 of Part 1 to this instrument.

    (2)The evidence of financial capacity

    (a)is in the form specified in section 10; and

    (b)demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of the primary applicant:

    (i) travel expenses; and

    (ii) the following living costs and expenses:

    (A)if the primary applicant intends to stay in Australia for a period of 12 months or more – AUD21,041 (annual living costs); and

    (B)if the primary applicant intends to stay in Australia for a period of less than 12 months – the pro rata equivalent of annual living costs, calculated as specified in section 11; and

    (iii) the following course fees, minus any amount already paid:

    (A)if the duration, or the remainder, of the primary applicant’s period of study in Australia is less than 12 months – the fees for the course of study or the remaining components of the course of study; or

    (B)If the duration, or the remainder, of the primary applicant’s period of study in Australia is more than 12 months – course fees for the first 12 months of the period study in Australia; and

    Note : The period of study is the period beginning at one of the following commencement periods and ending on the final day of the applicant’s final course of study:

    (a)if the applicant’s first course of study commenced after the date of application – on the first day of the first course of study; or

    (b)if the applicant’s first course of study commenced before the date of application – on the date of application.

    (c)demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of each secondary applicant making a combined application with the primary applicant:

    (i) travel expenses; and

    (ii) for each secondary applicant who intends to stay in Australia for a period of 12 months or more – the following costs (annual living costs):

    (A)for a spouse or de facto partner - AUD7,362 and

    (B)for a dependent child - AUD3,152; and

    (iii) for each secondary applicant who intends to stay in Australia for a period of less than 12 months – the pro rata equivalent of annual living costs, calculated as specified in section 11; and

    (iv) the following school fees for each school-age dependant:

    (A)if the school-age dependant intends to stay in Australia for more than 12 months - AUD8,296 (annual school costs); or

    (B)if the school-age dependant intends to stay in Australia for less than 12 months – the pro rata equivalent of annual school costs, calculated as specified in section 11; or

    (C)if the school-age dependant is enrolled in a course of study at a State or Territory government school where the fees have been waived, and the Primary Applicant is enrolled in a course as a doctoral degree student, a Foreign Affairs student, a Defence student or a Commonwealth sponsored student – nil.

    Note: For secondary applicant, see section 4 of Part 1 to this instrument

    (3)The evidence of financial capacity:

    (a)is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and

    (b)demonstrates that the primary applicant’s parent, spouse or de facto partner has a personal annual income, in the 12 months immediately before the application is made, that is:

    (i)if there is no secondary applicant– at least AUD62,222; or

    (ii)if there is a secondary applicant – at least AUD72,592.

    (4)The evidence of financial capacity is the primary applicant’s completed AASES form.

    Note: AASES form is defined in regulation 1.03 of the Regulations to mean for a secondary exchange student, an Acceptance Advice of Secondary Exchange Student form from the relevant State or Territory education authority, containing the following declarations:

    (a) a declaration made by the student’s exchange organisation, accepting the student;

    (b) a declaration made by the student’s parent, or the person or persons having custody of the student, agreeing to the exchange.

    (5)If the primary applicant is a Foreign Affairs student – the evidence of financial capacity is a letter of support from the Department of Foreign Affairs and Trade.

    (6) If the primary applicant is a Defence student – the evidence of financial capacity is a letter of support from the Department of Defence.

    7 Subclause 500 (Student) visa—secondary applicants

    (1)For the purposes of subclause 500.313(3) of Schedule 2 to the Regulations, a secondary applicant who is included in the primary student visa holder’s application, must give to the Minister evidence of financial capacity that satisfies the requirements of subsection (2), (3), (4), (5) or (6).

    (2)The evidence of financial capacity:

    (a)is in the form specified in section 10; and

    (b)demonstrates that sufficient funds are available to meet the costs and expenses of the primary student visa holder set out in subparagraphs 6(2)(b)(i) to (iii) of this Part; and

    (c)demonstrates that sufficient funds are available to meet the costs and expenses of each secondary applicant making a combined application with the primary student visa holder specified in paragraphs 6(2)(c)(i) to (iv) of this Part.

    (3)The evidence of financial capacity:

    (a)is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and

    (b)demonstrates that the primary student visa holder’s parent, spouse or de facto partner has a personal annual income that is at least AUD72,592.

    (4)If the primary student visa holder is a Foreign Affairs student and has provided a letter of support mentioned in subsection 6(5) of this Part – the evidence of financial capacity is the letter of support if the letter of support indicates that the Department of Foreign Affairs and Trade will meet the living costs and expenses of each secondary applicant.

    (5)If the primary student visa holder is a Defence student and has provided a letter of support mentioned in subsection 6(6) of this Part – the evidence of financial capacity is the letter of support if the letter of support indicates that the Department of Defence will meet the living costs and expenses of each secondary applicant.

    (6)If:

    (a)the primary student visa holder is a Foreign Affairs student or a Defence student and has provided a letter of support mentioned in subsection 6(5) or (6) of this Part; but

    (b)the letter of support does not indicate that the relevant department will meet the living costs and expenses of each secondary applicant;

    then the evidence of financial capacity:

    (c)demonstrates that sufficient funds are available to meet the costs and expenses of the secondary applicant specified in paragraphs 6(2)(c)(i) to (iv) of this Part.

    8 Subclass 500 (Student) visa – secondary applicants not included in the primary student visa holder’s application

    (1) For the purposes of subclause 500.313(3) of Schedule 2 to the Regulations, a secondary applicant (the first secondary applicant), who is not included in the primary student visa holder’s application, must give to the Minister evidence of financial capacity that satisfies the requirements of subsection (2), (3), (4), (5) or (6).

    (2) The evidence of financial capacity:

    (a)is in the form specified in section 10; and

    (b)demonstrates that sufficient funds are available to meet the costs and expenses of the primary student visa holder specified in subparagraph 6(2)(b)(ii) of this Part; and

    (c)demonstrates that sufficient funds are available to meet course fees for any component of the primary student visa holder’s course of study which will be completed while the first secondary applicant is in Australia, up to an amount equivalent to fees for 12 months of the course of study, minus any amount already paid; and

    (d)demonstrates that sufficient funds are available to meet the costs and expenses of each secondary student visa holder and that the first secondary applicant has sufficient funds available to meet their own costs and expenses, and the costs and expenses of each additional secondary applicant making a combined application with the first secondary applicant, specified in subparagraphs 6(2)(c)(ii) to (iv) of this Part; and

    (e)demonstrates that the first secondary applicant has sufficient funds available to meet their own travel expenses and the travel expenses of all additional secondary applicants making a combined application with the first secondary applicant.

    (3)The evidence of financial capacity:

    (a)is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and

    (b)demonstrates that the primary student visa holder’s parent, spouse or de facto partner has a personal annual income that is at least AUD72,592.

    (4)If the primary student visa holder is a Foreign Affairs student and has provided a letter of support mentioned in subsection 6(5) of this Part – the evidence of financial capacity is the letter of support if the letter of support indicates that the Department of Foreign Affairs and Trade will meet the living costs and expenses of each secondary applicant.

    (5)If the primary student visa holder is a Defence student and has provided a letter of support mentioned in subsection 6(6) of this Part – the evidence of financial capacity is the letter of support if the letter of support indicates that the Department of Defence will meet the living costs and expenses of each secondary applicant.

    (6)If:

    (a)the primary student visa holder is a Foreign Affairs student or a Defence student and has provided a letter of support mentioned in subsection 6(5) or (6) of this Part; but

    (b)the letter of support does not indicate that the relevant department will meet the living costs and expenses of each secondary applicant;

    then the evidence of financial capacity:

    (c)demonstrates that sufficient funds are available to meet the costs and expenses of each secondary student visa holder and that the first secondary applicant has sufficient funds available to meet their own costs and expenses, and the costs and expenses of each additional secondary applicant making a combined application with the first secondary applicant, specified in subparagraphs 6(2)(c)(ii) to (iv) of this Part; and

    (d)demonstrates that the first secondary applicant has sufficient funds available to meet their own travel expenses and the travel expenses of all secondary applicants making a combined application with the first secondary applicant.

    …

    10 Evidence of financial capacity

    The following forms of evidence of financial capacity are specified:

    (a)money deposit with a financial institution;

    (b)loan with a financial institution;

    (c)government loans;

    (d)scholarship or financial support.

    11 Pro rata equivalent

    In this Part, the pro rata equivalent of annual costs is calculated by:

    (a)dividing the annual amount by 365; and

    (b)multiplying the resulting number by the number of days the applicant is intending to stay in Australia.