Jepkemoi (Migration)

[2023] AATA 2753

Jepkemoi (Migration) [2023] AATA 2753 (11 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ken Kibet Jepkemoi

REPRESENTATIVE:  Mrs Nadiia Zdielnik (MARN: 1569520)

CASE NUMBER:  2211308

HOME AFFAIRS REFERENCE(S):          BCC2021/491951

MEMBER:Michael Biviano

DATE:11 August 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 11 August 2023 at 2:31pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine access to funds – no support from family – no current enrolment – seeking to return to study and raising funds – no documentary evidence provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.211(a), 500.214

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 August 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 3 April 2021. 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 (Cth) (the Regulations) because the applicant failed to provide evidence of genuine access to funds (GAF) in accordance with the LIN 19/198 – Financial capacity instrument (the instrument).

4. The applicant appeared before the Tribunal on 9 June 2023 to give evidence and present arguments.

5. The applicant was assisted in relation to the review.

6. On 3 April 2021 the applicant lodged the review application with the Tribunal.

7. On 11 May 2023 the Tribunal invited the applicant to attend a hearing before the Tribunal on 9 June 2023 to give evidence and present arguments. The invitation relevantly stated:

   Please provide all documents you intend to rely on to support your case by 2 June 2023. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.

   1. A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.

   2. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.

   3. Either:

   ·Documents that demonstrate you 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 your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument, currently LIN 19/198, a copy of which is attached.

   OR

   ·Evidence of the annual income of your parents/spouse/de facto partner and that you have genuine access to those funds.

8. The applicant did not provide to the Tribunal the documents requested, and in particular no documents were provided in relation to enrolment, the studies he had undertaken and his financial capacity, which are relevant for assessing GAF.

9. On the morning of the hearing the applicant sent an email to the Tribunal seeking that the hearing be postponed. The email stated, omitting formalities (unedited):

   Hello there
   My name is Ken Jepkemoi
   I hope all is well with you
   I am writhing to kindly request for an extension date on my hearing session that is scheduled for today.
   I am really not well at the moment both physically and mentally. I do have alot going on and I was just hoping for a couple of days please as I just try to get back on track please

   I really please hope you will consider

10. The applicant did not provide any supporting documents to support the request for postponement and no medical evidence was provided in support of the application as to his physical and mental state. The material supporting his application was inadequate to grant the adjournment, especially having regard to the fact that the request was made immediately prior to the hearing and no earlier notice had been given, with no details as to his mental and physical state and whether he was able to participate in the hearing.

11. The Tribunal wrote to the applicant on 9 June 2023 and informed the applicant of its decision to refuse the request for an adjournment but informed the applicant that he was at liberty to apply at the hearing to postpone the hearing. The letter stated:

    I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Student (Temporary) (Class TU) visa.

    On 11 May 2023 we sent a letter inviting you to attend a hearing on 9 June 2023 to give evidence and present arguments relating to the issues arising in your case.

    On 9 June 2023 we received a request that the hearing be postponed.

    The Member has considered the request carefully but without supporting material has decided not to postpone the hearing.

    You are at liberty to apply at the hearing for a postponement.

    The hearing will therefore proceed as scheduled.

    Please note that all details about the hearing, as set out in the hearing invitation still apply.

12. The matter proceeded to hearing on 9 June 2023. The applicant did not make a further application to postpone the hearing but informed the Tribunal in evidence at the hearing:

    a.He was mentally unwell;

    b.As the rent was being raised in his apartment, he needed to leave his apartment as he was being evicted;

    c.He had come to Australia in November or December 2017, on a student visa that he obtained on 30 October 2017;

    d.He had completed a Certificate IV and Diploma of Disability and had enrolled to undertake a Bachelor of Nursing in 2020 but his enrolment ceased at the end of March 2021;

    e.He gave evidence he was not enrolled and did not have a current Confirmation of Enrolment (COE);

    f.He had not provided any documents to the Tribunal regarding his financial position and GAF;

    g.He had from March 2021 to February 2022 worked for Health-X during the COVID‑19 pandemic doing vaccinations and continuing to work in the aged care industry;

    h.He was unable to raise the funds necessary to undertake studies as his family had not supported him due to his sexual orientation;

    i.He was seeking to return to study and undertake nursing. However, he was trying to raise funds. He had raised some $14,500;

    j.If he undertook a Bachelor of Nursing online at Charles Darwin University, the likely tuition fees would be $32,000 over 3 years, of which the first down payment would be $8,000;

    k.He claimed he needed to raise a further $27,500 to meet the GAF requirement, but he was hoping to borrow that amount from friends.

13. Having considered the applicant’s evidence and the applicant’s circumstances, the applicant was given until 30 June 2023 to file documents evidencing that he is enrolled and has sufficient funds to meet GAF. The applicant was informed and understood that if he did not file any documents in support of his application, the Tribunal would determine the matter on the documents provided, which was likely to result in the decision being affirmed as there was inadequate evidence before the Tribunal to establish that he had GAF and was enrolled.

14. Notwithstanding the opportunity afforded the applicant to provide further documents in support of his application, the applicant did not file any documents in support of his application and has not sought any extension of time to file documents in support of his application.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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. The issue in the present case is whether the applicant has GAF to meet cl 500.214.

    Genuine access to funds (cl 500.214)

17. Clause 500.214 requires the applicant to meet certain financial requirements. If the applicant is required to do so by the Minister, they must give evidence of financial capacity that satisfies the requirements set out in an instrument: cl 500.214(3). All primary applicants must also satisfy the Tribunal that, while they hold the visa, sufficient funds will be available to meet their costs and expenses during their intended stay in Australia, as well as the costs and expenses of any members of their family unit who will be in Australia: cl 500.214(2). The Tribunal must also be satisfied that the applicant will have genuine access to the relevant kinds of funds.

18. In the present case, the Minister has required the applicant to give evidence of financial capacity in accordance with cl 500.214(3).

19. The Decision Record of the delegate of the Department of Home Affairs dated 1 August 2022, which was provided to the Tribunal by the applicant, confirms that the applicant made the current application for a Student (Class TU Subclass 500) visa on 3 April 2021 and the visa application was refused on the basis that the applicant did not provide sufficient evidence of GAF to satisfy cl 500.214 (Decision Record).

20. The Decision Record also confirmed that the applicant was required by the Minister to give evidence of financial capacity that satisfied the requirements specified by the legislative instrument and that he failed to provide evidence of financial capacity. The applicant was required by the legislative instrument specified at cl 500.214 to provide evidence of sufficient funds to meet travel expenses, living costs and annual course fees.

21. The Decision Record stipulated that the level of GAF required to be provided was $30,610.11 and the applicant has provided notices of assessment for the years ending 30 June 2018, 2019 and 2020 and a letter of employment from Health-X Australia dated 29 March 2021.

22. Consequently, the delegate in the Decision Record, weighing up the applicant’s circumstances as a whole, was not satisfied that the applicant had provided sufficient evidence of financial capacity as specified by the legislative instrument and thereby was not satisfied that the applicant meets the financial requirement for the visa as specified at cl 500.214.

23. The applicant, despite being given a substantial opportunity to do so, has not provided any evidence or documentation to the Tribunal that establishes he has financial capacity and access to sufficient funds for the purposes of tuition fees, living expenses and travel required by the instrument.

    Has the applicant provided evidence of financial capacity in accordance with the instrument?

24. The requirements for evidence of financial capacity for cl 500.214(3) are set out in LIN 19/198, which is attached to this decision.

25. The applicant is a 24-year-old Kenyan national who now seeks a student visa to study a Bachelor of Nursing at Charles Darwin University, which is a 3.5 year course with a tuition fee of approximately $32,000.

26. The applicant did not provide any COE certificates which confirmed his current enrolment situation or what courses he is enrolled in.

27. The Tribunal notes that it is the applicant who is required to establish the financial requirements specified by the instrument at cl 500.214, which requires him to establish the cost of his travel expenses, living costs and annual course fees for his stay on the student visa in accordance with the instrument and to provide the Minister with evidence of sufficient funds to meet those travel expenses, living costs and annual course fees.

28. As the applicant did not provide the Tribunal with any evidence of those expenses and financial capacity, the Tribunal is unable to make a proper assessment of his financial capacity.

29. The Tribunal notes that a COE certificate for a course, functions as a record of a student’s enrolment status in an approved course and as proof of enrolment for the purpose of cl 500.211. Critically it provides enrolment details (e.g. course commencement and conclusion dates, name of student, name of course, name of education provider and date of creation) and course costs of an applicant on a student visa and is evidence of financial capacity as outlined in cl 6(2) of the instrument for the purpose of cl 500.214. Without its provision, the Tribunal is unable to make an assessment of the annual course fees to be paid. In this case, the applicant has not provided a COE certificate of his studies to the Tribunal.

30. The applicant in evidence claimed that he was seeking to gain enrolment in a Bachelor of Nursing course which is a 3.5 year course with a tuition fee of approximately $32,000 with an initial payment of $8,000. Based on those amounts, the likely tuition fees in the first year appear to be approximately $12,000.

31. The applicant also has not given evidence about the duration of his proposed studies, likely to be greater than 12 months, which will affect the amount to be assessed for living expenses under cl 6(2) of the instrument as it will be $21,041. The applicant gave evidence that a return air ticket home would amount to $2,000. On the applicant’s evidence, which is uncorroborated, with the likely tuition fees of $12,000, living expenses of $21,041 and travel expenses of $2,000, the likely GAF would be $35,041.

32. The applicant had submitted to the Department evidence about his level of income, which is not current and not suitable to establish evidence of his current financial capacity.

33. The review application before the Tribunal requires a time of decision finding. This means at the time of decision, the applicant must satisfy LIN 19/198. This means at the time of decision, the Tribunal must be satisfied the applicant satisfies cl 500.214 of Schedule 2 to the Regulations. An applicant is required to provide current information to the Tribunal to satisfy GAF as set out in cl 500.214.

34. The applicant is required to provide proof of access to funds. In this case, the Tribunal considers that the applicant is required to provide evidence of his relevant living, tuition and travel expenses and GAF as set out above.

35. The applicant has not provided sufficient evidence to this Tribunal about those expenses and there is no evidence that he has obtained an enrolment.

36. Furthermore, the applicant did not submit any documents that confirmed the funds that he had available to satisfy GAF. Accordingly, the Tribunal is not satisfied due to the insufficient evidence submitted that he has financial capacity and GAF and that he satisfies the requirement imposed by LIN 19/198.

37. On the basis of the above, the Tribunal is not satisfied that the applicant meets cl 500.214(3).

    Are there sufficient funds available to meet costs and expenses while the applicant holds the visa?

38. By reason of the matters set out above and the insufficient evidence submitted to the Tribunal, the Tribunal does not accept that there are sufficient funds available to meet costs and expenses while the applicant holds the visa.

39. For these reasons, the Tribunal is not satisfied that the applicant meets cl 500.214(2).

    Will the applicant have GAF?

40. To meet cl 500.214(1), the Tribunal must also be satisfied that the applicant will have GAF referred to above.

41. By reason of the matters set out above, the Tribunal is not satisfied the applicant will have GAF, and the Tribunal is not satisfied that cl 500.214(1) is met.

42. Accordingly, the Tribunal is not satisfied that the applicant meets cl 500.214.

43. 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

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

    Michael Biviano
    Member

    
    

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

    6Subclause 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.

    7Subclause 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.

    8Subclass 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.

    …

    10Evidence 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.

    11Pro 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.