Kadupiti Mudalige (Migration)
[2022] AATA 1581
•23 February 2022
Kadupiti Mudalige (Migration) [2022] AATA 1581 (23 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Choodamanie Indrajith Kadupiti Mudalige
REPRESENTATIVE: Mr M Shamraiz Mehdi (MARN: 1465452)
CASE NUMBER: 2116282
HOME AFFAIRS REFERENCE(S): BCC2019/5483307
MEMBER:Mark Bishop
DATE:23 February 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 23 February 2022 at 10:02am
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–– applicant failed to provide the information within the prescribed period – applicant failed to attend tribunal hearing – applicant has not provided proof of Genuine access to funds – decision under review affirmedLEGISLATION
Migration Act 1958, ss 65, 379, 362, 499
Migration Regulations 1994, Schedule 2, cls 500.212, 500.214CASES
MIAC v Li (2013) 249 CLR 332
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 November 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 31 October 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.
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.
On 7 February 2022 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 23 February 2022. The Tribunal advised the applicant the hearing would be contacted by mobile phone. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. On 16 February 2022 and 22 February 2022 the Tribunal sent system generated SMS reminder notices to the applicant’s phone number.
It is the practice of the Tribunal to conduct “preliminaries” prior to the commencement of the hearing. These preliminaries are a courtesy to review applicants and basically explain the process of the hearing which will commence at a later time. These “preliminaries” are not part of the hearing and the presiding member does not attend during this process as it is conducted by administrative staff of the Tribunal. The Tribunal contacted the applicant on numerous occasions immediately prior to 9.30am on the day of the scheduled review hearing. There was no response to any of these phone calls. The Tribunal also attempted to contact the applicant by phone to commence the hearing and the applicant did not respond to the phone call (for full detail see Case Note number 3). In Case Note 4 the Tribunal records “23/2: Outgoing call to Rep - no answer, left VM advising as per Member instructions that late pp request refused and hearing will proceed as scheduled.”
The applicant did not appear before the Tribunal.
The review applicant did not appear before the Tribunal for the phone hearing on the day and at the scheduled time. For further detail see paragraphs 12 to 22 below. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(4) and the invitation has not been returned to sender. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The applicant provided a copy of the decision record to the Tribunal. The applicant was assisted in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 Genuine Access to Funds (GAF).
Request for Adjournment
At 8.18am on the day of the hearing the applicant’s agent lodged an email in the following terms:
·The applicant has advised that he has not been able to take a day off from work and request AAT to postpone his hearing to another date after 28th Feb.
The High Court of Australia (HCA) in MIAC v Li (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner, which is reasonable and has regard to the statutory purposes of s.360. In considering reasonableness, the Court considered the Tribunal’s statutory purpose to conduct a conduct its review in a manner which ‘is fair, just, economical, informal and quick’.
The Tribunal turned to consider the request for an adjournment outlined in paragraph 8 above.
The Tribunal notes the applicant was not required to “take a day off from work”. The Tribunal advised the applicant in writing it would contact him on a specified number for a phone hearing for up to 3 hours.
In considering the request the Tribunal had regard to the objectives of the Act, the relevant President’s Direction and the HC case cited above in paragraph 9 as to ”reasonableness”.
The applicant is required to provide proof of Genuine Access to Funds in order to satisfy the criteria set out in c.500.214. Those criteria are set out in LIN 19/198 and a copy of this instrument was provided to the applicant on 7 February 2022. The applicant has been aware of the need to provide this information to the Tribunal as he lodged an Application for Review arising out of the delegate’s decision that addressed this requirement in detail on 3 November 2021. In addition the applicant has been in receipt of correspondence for some weeks requesting he provide this information at least 7 days prior to the scheduled date of hearing.
At no time has the applicant acknowledged the multiple written and text advices received from both the Department and Tribunal over a significant period of time.
In the instance review application the applicant could have complied with the Tribunal request and provided the requested information prior to the haring. The information as sought and outlined is proof of current enrolment, proof of sponsorship (if relevant) and proof of GAF. The applicant did not do this (despite a request from the Tribunal). At a hearing the Tribunal would request to be provided with these documents.
The applicant was aware of the time and date of the scheduled hearing for a period of 16 days. The applicant did not provide any details of his work or work commitments. He did not provide any confirmation or verification of making a simple request to attend a phone or video hearing for the briefest duration. He did not provide any confirmation or verification of a refusal to allows a few minutes by the relevant employer to attend the phone or video hearing that might result in the issue of a visa that would enable the applicant to maintain a presence in the workforce. The Tribunal has serious doubts that the applicant was unable to attend the scheduled hearing.
Prior to the hearing the applicant did not respond to repeated contacts from the Tribunal in any way.
The Tribunal refused the request for an adjournment and advised the applicant the review hearing would proceed as scheduled.
Genuine access to funds (cl 500.214)
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.
In the present case, the Minister has required the applicant to give evidence of financial capacity in accordance with cl 500.214(3).
Has the applicant provided evidence of financial capacity in accordance with the instrument?
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.
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.
The delegate made a finding the applicant failed to provide adequate evidence of GAF.
An applicant is required to provide current information to the Tribunal to satisfy GAF as set out in cl.500.214.
On 7 February 2022 the Tribunal wrote to the applicant and invited the applicant to attend a hearing. The Tribunal advised the applicant “…Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, 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 or accompanied by a translation from a qualified translator”.
The Tribunal requested the applicant provide the following documents at least 7 days prior to the hearing:
·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.
·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.
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.
OR
·Evidence of the annual income of your parents/spouse/de facto partner and that you have genuine access to those funds. Please note: any access to funds information that is from outside of Australia needs to be converted into Australian Dollars (AUD) using the following link: A copy of the conversion needs to be added to any submission with the conversion date.
The Tribunal is of the view the applicant was provided with adequate written notice of the need to provide “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 1994c(the Regulations) for the grant of the visa” as outlined in paragraph 16 above.
In addition, on 3 February 2022 the Tribunal provided a copy of LIN 19/198 Financial Capacity Instrument to the applicant. This instrument in s.6 (2) outlines the detail an applicant is required to provide to comply with the instrument and hence satisfy cl.500.214 of Schedule 2 to the Migration Regulations. The Tribunal is of the view the applicant was provided with adequate written notice of the type of information required to be provided to the Tribunal to satisfy LIN 19/198.
In response to the request for information outlined in paragraphs 14 to 17 above the applicant did not comply with the request to provide 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”.
Prior to the hearing the applicant did not provide a copy of a current COE or any form of proof of current enrolment in a course of study to the Tribunal.
The applicant provided copies of five COE’s to the Department. COE’s numbered B39AC288, B39AD986, B28CDA91 and B28CF346 had expired. The Tribunal gives them no weight. COE numbered B39AF061 was for enrolment in a Advanced Diploma of Marketing and Communication and valid from 25 October 2021 until 23 October 2022. The Tribunal gives this COE weight.
Prior to the hearing the applicant did not provided any information or documentation that addressed cl.500.214.
The applicant did not appear before the Tribunal.
The applicant has been aware since 3 November 2021 (date of delegate’s decision) of the requirement to provide proof of GAF. Despite multiple notices of such requirement the applicant has not provided proof of GAF.
The applicant has not provided any information or documents to the Tribunal that addresses the requirement of GAF.
The date of visa application was 31 October 2019.
The applicant did not provide current proof of GAF to the Tribunal. There is no evidence before the Tribunal that the applicant satisfies LIN 19/198 (see paragraph 31 above in addition).
On the basis of the above, the Tribunal is not satisfied that the applicant meets cl.500.214(3).
Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.214.
As the Tribunal is not satisfied the applicant will have genuine access to the funds, cl 500.214(1) is not met.
Conclusion on cl 500.214
Accordingly, the Tribunal is not satisfied that the applicant meets cl 500.214.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Mark Bishop
MemberAttachment – 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.
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