Fofie (Migration)

[2023] AATA 3272

Fofie (Migration) [2023] AATA 3272 (6 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Priscilla Grace Fofie

REPRESENTATIVE:  Mr Michael McCrudden

CASE NUMBER:  2204984

HOME AFFAIRS REFERENCE:               BCC2019/5778652

MEMBER:Lilly Mojsin

DATE:6 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 06 October 2023 at 9:16am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – no financial or employment ties to home country – financial hardship – impact of the COVID-19 lockdowns – mental health issues – limited academic progress – no evidence of enrolment – limited plans to start a business in home country – decision under review affirmed

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 500.111, 500.211, 500.212; r 1.03

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 1 April 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 14 November 2019. 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 review refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant appeared before the Tribunal on 11 September 2023 to give evidence and present arguments, via Teams Video.

5. The Tribunal had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.

6. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that the applicant could hear and see the Tribunal Member and interpreter and the applicant’s representative. The Tribunal was able to interact with the applicant and was able to maintain line of sight and appropriate communication throughout the proceedings.

7. The applicant was assisted in the hearing by an interpreter in the Twi language.

8. The applicant was represented in the review and the applicant’s representative attended the Tribunal hearing and provided a lengthy submission to the Tribunal.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant’s visa application is based on enrolment to study an Advanced Diploma of Hospitality Management.  The applicant had declared she completed a Diploma of Hospitality Management – Ashton College, from 31 July 2017 to 23 August 2019.

10. The delegate refused to grant the visa and found that the applicant had not provided evidence of employment or financial assets in her own name in Ghana. Whilst the applicant’s brother lived in Ghana, the delegate was not satisfied this was a significant incentive for the applicant to return when considered with the applicant’s lack of financial or employment ties to her home country. Further the delegate was not satisfied the applicant had demonstrated significant incentive to return to Ghana upon completion of her proposed Advanced Diploma of Hospitality Management in Australia.  As the applicant had only completed a Hospitality Management course in 2019 since her arrived in Australia and was proposing to undertake further studies, the delegate considered that the quality of lifestyle in Australia may act as a significant incentive for the applicant to remain in Australia. The applicant had not declared any future job offers nor provided evidence that the course was required in order to further her career in Ghana and the delegate questioned whether the qualification was necessary to achieve her career goal. The delegate also was concerned that the applicant had utilised temporary visas and was again attempting to utilise a temporary visa to maintain ongoing residence in Australia.

11. On 8 September 2023 the applicant submitted the following documents to Tribunal in support of her application for review:

    a.Statement of Grace Priscilla Fofie dated 6 September 2023

    b.Screenshot of correspondence from AMET (undated)

    c.Confirmation of Enrolment [CoE] for Bachelor of Information Technology at Torrens University

    d.CoE for Diploma of Information Technology at Torrens University

    e.CoE for Advanced Diploma in Hospitality Management at Strathfield College

    f.CoE for Certificate IV in Commercial Cookery at Ashton College

    g.CoE for Certificate III in Commercial Cookery at Ashton College

    h.Conditional Letter of Offer from Torrens University for Bachelor of Information Technology dated 21 March 2022

    i.Statement of Attainment for Certificate IV in Commercial Cookery issued 14 March 2019

    j.Statement of Attainment for Certificate III in Commercial Cookery issued 23 August 2017

    k.Evidence of the state of health of the applicant’s mother (Prescription form and letter from FOCOS Orthopaedic Hospital)

    l.Letter from Hoa Pham, Psychologist regarding the passing of the applicant's grandfather dated 4 August 2022

    m.Copy of the applicant’s passport

12. A submission by the applicant stated that:

    I was born on 4 April 1998 and am 25 years of age. I came to Australia in 2017, when I was 19 years of age. Looking back, this was too young for me to come to Australia especially when I did not know anyone here.

    Due to the fact I was so isolated, life in Australia was initially challenging. Eventually – about 6-12 months after I arrived – I befriended someone, Ursula. I got along well with Ursula and lived with her for a period. I will say more about Ursula later in this statement.

    Even though life in Australia, I still managed to complete a Cert III and Cert IV in Commercial Cookery at Ashton College (“Ashton”). When I say I “complete[d]” the courses, I completed the academic components of the courses. I was not able to complete the practical component of the Cert IV because I could not find an employer who would train me. I finished the Cert IV course in late 2018 or early 2019.

    The Cert III and Cert IV were part of a bundle of courses, which included the Advanced Diploma in Hospitality Management (ADHM). Once that Cert IV finished, I was supposed to complete the ADHM at Ashton, but decided to move my enrolment to Strathfield College (“Strathfield”) because it was closer to where I was living.

    I enjoyed the ADHM course at Strathfield. I attended the lessons etc as required, and I was passing most of my subjects. Where I failed courses, it was not because I was not trying.

    In July 2019, money in my bank account was seized by my bank account. I found out that this was because of Ursula’s activities. I had a big fight with Ursula and moved out. I then moved in with someone a friend of mine knew.

    I continued to attend Strathfield until early 2020 when COVID-19 struck. Even though the course at Strathfield was available online: (i) I have never been very good with using computers; and (ii) there was no support available to me to help me completing the course in this way; everyone was too busy trying to adjust to COVID-19. I just could not handle it and all the uncertainty at the time, so I left the ADHM at Strathfield.

    In May 2020, my world fell apart. I was arrested because of what Ursula had been doing with my bank account. I tried to explain to the police what had happened, but they did not listen. In the end the charges against me did not continue but this was still very stressful, especially when I did not have any family etc in Australia.

    In July 2020, I lost my job as a waitress because of the lockdowns in Melbourne. I ended up relying on my grandmother in the USA who would send me USD200 per fortnight. This was not much, but to pay for food and other necessities. It certainly was not enough that I could consider renewing my studies.

    I was able to resume my employment with Ancient Memories when the lockdowns were lifted later in 2020. As with everyone in the hospitality industry however, I lost my job when the next lockdown happened in early 2021.

    During 2020 and 2021, my mental health deteriorated to the point where I had a lot of trouble sleeping, I cried a lot, could not feel happy etc. I also gained about 35kgs which made me feel worse. As well as everything that was happening in my life in Australia, my mother was very ill in Ghana. I saw a psychologist on a number of occasions, but this did not help me.

    I just was not in a position where I was able to study. I could not afford to study. My mental health was at a point where, even if I could have afforded to study, I would not have been able to concentrate. Also, even if my mental health was not an issue, all the courses were online which would have made in really hard for me to study.

    In about June or July 2021, I started going to the gym although it was only a couple of times. I really got into going to the gym in late 2021 when the lockdowns eased. Going to the gym was the thing I needed to turn my life around. Being able to focus on me and seeing my physical health improve led to my mental health improving slowly.

    At some point in late 2021 or early 2022, I took steps to enrol in the Diploma of Technology course at Torrens University. I thought it would be a good idea to do this course because I wanted to learn about computers. COVID-19 had showed how much we all need computers and I wanted to improve my skills in this area.

    I started the Diploma of Technology course in early 2022. This course was a disaster and I really regret it. I thought they would be teaching the basics of computers, but I was wrong; it was much more advanced. To make matters worse the course was online, which meant it was hard for me to ask questions etc. I accept that I should have read more about the course before I enrolled.

    As I was not coping with the Diploma of Technology course, I asked Torrens what other courses I could do, and they recommended the Diploma of Business course. To be honest, I was not particularly interested in studying business when I enrolled, but I did not have another choice. I had fee credits with Torrens and could not afford to give this up an enrol somewhere else.

    In the beginning I did not mind the business course and applied myself as best I could. Unfortunately, I still struggled academically with the course, and especially with referencing material which I just could not understand – I was never taught to do this in Ghana. I ended up being accused by Torrens of plagiarism because I could not really reference anything.

    I felt really embarrassed by being labelled a cheat. I thought it was pretty clear that the unreferenced sections that appeared in my work were clearly not from me; how could they be, my English language skills are not that good. I was not trying to pass text off as my work, I just did not know how to reference things I put in my work properly.

    All of the this coincided with the loss of my grandmother which was really difficult to deal with.

    Before I discontinued the Diploma of Business, I approached an education agent about enrolling in a new course. When I saw the education agent, they said that I did not have a visa and, as a result, it was not possible for me to enrol in another course.

    I was confused by what the education agent told me, but assumed (i) they must be correct; and (ii) I would only be allowed to resume my studies if my AAT proceedings were successful. As I did not think it was possible to enrol in a course of study, I did not take steps to enrol.

    What I did not appreciate was (i) I provided the education agent with my new passport; and (ii) my new passport had not been linked to my existing visa. I gather this meant that when the agent did a VEVO check on my new passport it said I did not have a visa.

    I accept the Tribunal might ask “Why didn’t you ask Mr McCrudden for advice?” I did not speak to my solicitor, Mr McCrudden very often after I received the decision to refuse my student visa application. While I knew I needed help with my AAT proceedings, I was embarrassed to speak to Mr McCrudden because I was not able to give him the money he asked for to help me with my AAT case.

    It was only when I recently when I started to speak to Mr McCrudden again – after he received the hearing invitation – that I found out about the problem with my passport. Earlier this week I approached another education agent, IDP. I have asked them to recommend a course to me. They recommended a couple of courses, including Diploma in Community Service. I have given the Diploma of Community Service some thought. I have always enjoyed helping others, so I think I could get a lot out of it. Also, the fact that there would be little need to advanced computer skills or to write long essays will also make it possible for me to participate in the classes effectively.

    As I only saw the education agent earlier this week, I have not enrolled in the course. I will do this as soon as possible, but it will take a couple of weeks. I need to investigate which course is most appropriate for me, the costs of the course etc.

    I would be grateful if the Tribunal could allow me a further 28 days to submit a COE. In terms of my future, I would like to pursue something in the care or fitness industries, or perhaps something that combines those fields. I am really focussed on my fitness, so much so that I am scheduled to compete in my first body-building contest later in the year. I have seen the benefits that exercise can make in a person’s life and think this could be especially true for people who are in need of care, e.g. the disabled, the elderly etc.

    While I do not know what the future will hold, a big part of me would like to return to Ghana to be with my family. The last six years have been really hard and it would be nice just to be around my family again. I do not want to return to Ghana empty-handed though. I really want to go back to my family and be able to say “I have achieved this in six years in Australia!”, i.e., being something more than two relatively low level cooking qualifications that I will not use. I would be grateful if I could be given the opportunity to get my life back on track and undertake further study in Australia.

13. The applicant attended a Tribunal hearing on 11 September 2023. Discussing her submission to the Tribunal, the applicant explained that she needed a further 28 days to provide a CoE. She explained that she was enrolled 4 to 5 months previously at Torrens University where she was studying a Diploma in Business. She found the course too difficult.

14. The applicant now wishes to enrolled in a Diploma in Community Service. The cost is $14,000-$15,000. She is going to pay the fees  with assistance from the person who helped her come to Australia, her uncle and sponsor.

15. The applicant explained that she hasn’t provided a CoE, as yet, because she went to AHMET Education, an educational agent and they told her there were complications with her visa application, they couldn’t help her and so she decided to try a new agent. She then contacted a new education agent.

16. She intends to pay half of the required fees, start the course and there will be a payment plan for her to pay the rest of the course. She works in a café as a manager and as a personal trainer as well. She has about $5 000 available. She is expecting to receive a CoE within 2 to 3 weeks.

17. The applicant’s representative sought an adjournment and after the adjournment advised the Tribunal that his client will endeavour to have the CoE sent to the Tribunal within the next weeks. When asked why the applicant did not have a CoE at hearing, the representative indicated that she had been investigating what sort of courses she could possibly complete and actually finding out details around those courses that is how much they are going to cost, what is involved in those courses and all such things. Those inquiries had only really been made in earnest over the course of the last three weeks because it was only at that point he had dispelled her misconception she could not study.

18. The Tribunal asked the applicant exactly what course she wanted to study, when did it commence, when did it finish and how much it cost. The applicant responded that the course was at Stotts College Melbourne, the intake is October this year, the course duration is one year and the cost is $14000-$15000, to study a Diploma in Community Service. She  explained that she had a problem with her passport but that was now sorted and she will be able to enrol in a course.

19. The applicant’s representative indicated that he had that morning provided the applicant’s passport to the Tribunal.

20. The Tribunal asked the applicant what sort of work she wished to do once she has completed her chosen diploma. She responded that presently she is doing personal training and she will go back home and start helping people, especially disabled people with their dieting, nutritional training and also start her own business. She said that she has completed a personal training course and she’s working 4 hours a week. She works at the gym.

21. The Tribunal asked her if she wanted to work in the field of personal fitness training on her return to Ghana. She said that she wants to work as a personal trainer and also because her mother is sick in Ghana she wants to work in community service in order to help them. Asked what sort of jobs are available in Ghana for people who are personal trainers working with disabled people she said that those people who are disabled will be encouraged to come in and train so she is going into the market to encourage disabled to be included in the physical and health business. Asked about what inquiries she had made about being able to do so, she said that she has a friend in the area and when she gets to Ghana she will contact him for more advice on how to get started.

22. It was put to her that she really did not know whether or not she would be able to do this sort of work in Ghana. She said that she knows it’s possible but she has been away for a while so she will need someone to take her through the new improvements and how to get started. Asked why she did not study this course in Ghana she responded that the educational system in Ghana is not that conducive and in Australia she will learn quite a number of skills so that when she gets back to Ghana she will be able to help and improve the lives of others. Asked how she knew that there was a demand for this type of work in Ghana, she said that a friend, who is currently in the business with whom she is still in contact, knows.

23. The applicant is single and she does not have any blood relatives in Australia. Her mother father and siblings all live in Ghana. The Tribunal asked her if she was still going to compete in her first body building contest later this year and she responded that due to the current situation she has been unable to concentrate on that and just wants to concentrate on her studies.

24. The applicant’s adviser made a lengthy submission to the Tribunal outlining the general temporary entry criteria.

25. Relevantly, in regard to the CoE the representative submitted that the applicant had been given information that was incorrect regarding whether or not she could study and further issues regarding her passport and linking of an expired old passport with a new passport created a problem for the applicant as the education agent incorrectly believed that the applicant was unable to link a Visa to her passport.  The representative indicated that a small amount of time was required to obtain the CoE. The Tribunal granted until 5 pm on 26 September 2023 to provide all further information. 

1. On 22 September 2023, the Tribunal was provided with a Student Letter of Offer and Student Acceptance to study a Diploma of Community Service. The applicant sought additional time to provide a CoE. The Tribunal again granted the applicant’s request for extra time to 5:00pm on 3 October 2023.

2. The applicant’s adviser on 3 October sought additional time of 2 to 3 weeks because it was claimed that the applicant had been asked by her education provider to submit additional information before they issue the COE and the applicant was in the process of gathering this information - which includes financial documentation from family abroad (as evidence of capacity) - but it will take her time to do so. 

   REASONS AND FINDINGS

3. 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 the applicant.

4. 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.

5. ‘Course of study’ is relevantly defined in cl 500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in reg 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 (Cth), to provide the course to overseas students.

6. The applicant, when she applied for the visa, stated that she wished to study an Advanced Diploma of Hospitality Management. She provided a lengthy submission to the Tribunal whereby she acknowledged that she is not enrolled in a course of study and has not been attending a course of study since ‘4 or 5 months ago’ at Torrens University when she was studying a Diploma of Business. She is now no longer enrolled in that.

7. Prior to the hearing the applicant requested that the Tribunal allow her a further 28 days within which to provide a CoE. She also stated that she has given the Diploma of Community Service some thought but was not enrolled in the course. She needed to investigate which course is most appropriate for her, the costs of the course etc. She would like to pursue something in the care or fitness industries, or perhaps something that combines those fields. At the Tribunal hearing the applicant  told the Tribunal that she wanted to study a Diploma of Community Service at a cost of $14000 -$15000 and she will pay it with assistance from some person who helped her come to Australia.

8. The applicant ceased studies some months prior to the Tribunal hearing and it was claimed that passport issues had resulted in delay to obtaining a new CoE. The applicant and her representative advised the Tribunal that the applicant will endeavour to provide a CoE within 2 weeks.  The Tribunal granted until 5 pm on 26 September 2023. On 22 September 2023, the Tribunal was provided with a Student Letter of Offer and Student Acceptance to study a Diploma of Community Service. The applicant again sought additional time to provide a CoE. The Tribunal again granted the applicant extra time to provide a CoE by 5:00 pm on 3 October 2023.

9. The applicant’s representative again, on 3 October 2023, sought additional time of 2 to 3 weeks to provide a CoE because it was claimed that the applicant had been asked by her education provider to submit additional information before they issued the CoE and the applicant was in the process of gathering this information, which included financial documentation from family abroad (as evidence of capacity) but it would take her time to do so.  No information from the education provider was attached to the request nor was any timeframe provided.   

10. The Tribunal has granted two adjournments. The Tribunal is of the view the applicant has had sufficient time within which to obtain a CoE. In light of the lack of information regarding how long it would take the applicant to provide the CoE, the Tribunal has proceeded to decide the review on the information before the Tribunal. The Tribunal cannot delay its decision indefinitely.

11. The Tribunal finds the applicant has not provided a CoE to the Tribunal. 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.

12. 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

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

    Lilly Mojsin
    Member