Illa (Migration)

[2018] AATA 4689

Illa (Migration) [2018] AATA 4689 (19 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Madhuri Illa

CASE NUMBER:  1707416

DIBP REFERENCE(S):  BCC2017/155985

MEMBER:Justin Meyer

DATE AND TIME OF

ORAL DECISION AND REASONS:          19 September 2018 at 11:42 am (VIC time)

DATE OF WRITTEN RECORD:                9 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine access to funds – breach of work conditions – no enrolment record – use of student visa program to retain residency – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2 cl 500.214

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 March 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 19 September 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The time is 11.20 am and it is 19 September 2018 and the tribunal makes the following decision in the matter of Madhuri Illa, AAT reference 1707416.

4. This is an application for review of a decision made by the delegate of the Minister for Home Affairs and that decision was made on 25 January 2017 and that refused the grant of a visa to the applicant, being a Student (Temporary) (Class TU) (subclass 500) visa and you have made an application to the tribunal to review that decision.

5. You applied for this particular visa on 12 January 2017, to undertake study in Australia.  Under subclass 500, at the time the visa application was lodged, the Student (Temporary) (Class TU) visa, contained two subclasses; subclass 500 for student and subclass 590 for student guardian. 

6. You applied for the visa to undertake study in Australia and you do not claim to meet the criteria for a subclass 590 visa.

7. The delegate in your case, refused to grant you the visa on the grounds that you did not satisfy the requirements of clause 500.214 in schedule 2 to the Migration Regulations. These are concerned with you not having genuine access to funds and therefore, the Department concluded that you had breached a condition and although certain information was provided about your financial situation, you failed to provide the evidence of accessible funds for your study in Australia. Since that time and until the present day, you have not provided that information.

8. You have appeared to give evidence and present arguments today.  You are not represented by a migration agent today.

9. I have informed you today of the reason why the delegate refused your visa application.  However, the determinative issue for the tribunal today is about the issue of compliance with visa conditions.  I have explained to you, the determinative issue, which has changed from your financial capacity to a question of your enrolment, which is compulsory, or offer to have enrolment.  So, the issue has changed.

10. It has been confirmed to me that you understand that the issue has changed.  I have explained to you that it must be satisfied that you are a genuine applicant for entry and stay as a student. 

11. The tribunal has noted that you have not enrolled in any particular course or received an offer of enrolment.  The tribunal confirms that you are not a Foreign Affairs student, a Defence student or a secondary exchange student.

12. You have told the tribunal that you have had an enrolment in the past and that was in 2017, when you were enrolled in a commercial cookery course at Acumen Education at a diploma level.  You were in that course for a number of months.  You have informed the tribunal that due to difficult relationship circumstances and claimed violence and accompanying financial hardship, you are unable to continue in that course.  The tribunal does not have any concerns about the credibility of your evidence on this however, the tribunal has noted that there is no current enrolment.

13. The tribunal wrote to you on 16 August 2018.  You confirmed that you have received this invitation.  You were asked to provide a copy of your current certificate of enrolment to the tribunal at least seven days before the scheduled date of the hearing.  A copy of the certificate was not provided.

14. At the hearing today, you were again requested to provide the tribunal with a copy of your current certificate of enrolment.  You did not do so.  Your sworn evidence is that you are not currently enrolled, nor do you have an offer of enrolment in any course of study in Australia.  I have no evidence of this occurring.  Current enrolment is a prerequisite for all student visa subclasses.  You have requested more time to provide such an enrolment document. 

15. The tribunal is not concerned so much with whether you can furnish a certificate of enrolment, it is a simple enough process to obtain one, if the government were to insist upon it.  The tribunal’s concern is that you have not utilised your right to study and move towards a claimed educational outcome.  The tribunal understands that very difficult personal and financial circumstances are the probable reason, but the tribunal notes that this is not an exception to the mandatory requirements. 

16. The tribunal notes that your husband was present at the hearing.  You recently married on 27 August 2018.  Your husband Arshad Shaik is the sponsor to a partner visa application that you have made, which you have lodged within the last two days.  I note that you have used the services of a migration agent in the past.  Your husband is an Australian citizen.

17. The tribunal finds that if this application is successful, this presents a pathway to you for remaining in Australia, but the tribunal makes no remarks on the veracity of that application or its prospects and it has no effect upon the decision today.

18. The tribunal has not received a meaningful response as to why a certificate of enrolment has not been provided before the hearing, other than the general unfortunate circumstances that you have found yourself in.

19. The tribunal also noted that there was potential adverse information contained within the Department of Immigration file and put that information to you during the hearing, under the provisions of section 359AA of the Migration Act.

20. By way of summary, it is anonymous information about you, which alleges that you worked outside of the legal requirements of your visa for more than 40 hours per week; that you provided fake documents that purported to have an employer attesting to your genuineness; that you have approached your present husband for sponsorship and that there is an exchange of sponsorship of your husband for a 457 visa and that you applied for a student visa without the permission of the primary applicant.

21. You gave a response to which the tribunal is satisfied; that due to family violence, you were suffering a lot and that you had no money; that you were forced to work; that it is your ex-husband who is behind the “dob-in” style of correspondence to the Department; that documents were done entirely by your husband on your behalf, about which you had no knowledge and that you genuinely wanted to study in Australia; that your parents are now supportive of your situation and want to help you and that your husband is willing and able to help you.

22. The tribunal accepts this information in response and gives no weight to the section 359AA information.

23. Now returning to the heart of the matter before me, there is no evidence before me that you are now enrolled or indeed have a current offer of enrolment in any applicable course of study.  The tribunal has given seven days before the hearing to provide this information and it has not been provided. 

24. Therefore, the current prerequisite for all student visa subclasses is not met.

25. There is no evidence that you meet the criteria for either of the remaining subclasses of class TU and you are not supported by the relevant party, as required by clause 576.229, nor have you made a visa application on the basis of being a student guardian.

26. For these reasons, I have concluded that the decision under review should be affirmed.

27. The time is now 11.42 am and it is 19 September 2018.

28. The tribunal has decided not to provide additional time and proceeds to its decision.

    DECISION

29. The Tribunal affirms the decision under review.

    Justin Meyer
    Member