Mosquera (Migration)

[2018] AATA 5070

Mosquera (Migration) [2018] AATA 5070 (13 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kathlyn Mosquera
Mr Ashton Saldua
Mr Arman Patrick Saldua

CASE NUMBER:  1717071

DIBP REFERENCE(S):  BCC2017/2134184

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          13 December 2018 at 12:04 pm (VIC time)

DATE OF WRITTEN RECORD:                15 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 15 February 2019 at 2:09pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – access to funds to satisfy financial capacity requirements – lack of satisfactory financial evidence –decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2, cl 500.214

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 27 July 2017 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 13 December 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. MEMBER:  Ms Mosquera, the situation is that you came to Australia on 24 January 2016 holding a student visa having completed a Bachelor of Science in the Philippines and you completed a Certificate III, and I think, a Certificate IV in Aged Care.

4. You joined your partner here in Australia, he had been here since 2010, and he is a dependent applicant on this visa application. 

5. You lodged this visa application on 16 June 2017 and I believe your intended studies were an Advanced Diploma of Leadership and Management.

6. To be eligible for the grant of a student visa an applicant must satisfy a range of criteria set out in the Regulations.  Your application was refused on 27 July 2017 because the delegate found you did not meet clause 500.214 in that you had not provided satisfactory evidence you had access to funds to meet the financial capacity requirements.

7. You applied to this Tribunal for a review of that decision.  You applied for a review of that decision on 4 August.  And on 8 August we sent you a letter acknowledging your application and saying if you wish to provide material or written arguments for us to consider you should do so as soon as possible but nothing came in.  And your application had been refused because you had failed to provide satisfactory financial evidence.

8. So the role of the Tribunal is to take a fresh look at your application to consider whether you meet the requirements for the grant of a student visa and to make a new decision. 

9. The hearing letter that we sent to you back on 19 November, which is over three weeks ago, asked you to provide evidence you met the requirements.  It asked you for some specific information, including evidence of current enrolment, documents that show you have access to sufficient funds and it went into some detail given that is why the application was originally refused. We also asked for documents that show past studies in Australia.

10. We asked for evidence to be provided at least seven days before today's hearing, so it could be properly considered.  Nothing came in until yesterday when you provided a range of evidence, including financial evidence. 

11. The financial evidence you have provided is evidence of financial support from a woman called Relfa Babic from Florida in the United States.  You provided evidence of Relfa Babic's passport, driver's licence, evidence of Relfa Babic's date of birth and you have provided a letter signed by the Market Manager, whatever that means, of Grow Financial Credit Union, which says Relfa Babic is an established member of the credit union.  You have provided payslips that indicate that this woman appears to be employed by this credit union.

12. However, what you have not provided is evidence of the relationship between you and this woman Relfa Babic.  You say you have that evidence on your phone but despite having had   over half an hour here today looking to find that document, you have been unable to do so and so there is no evidence before the Tribunal of the relationship between you and this person.

13. It is a different person to the one who initially provided you financial support. You initially provided financial evidence of support from an aunt who lives in Shepparton that you live with.  When I asked why you switched to another aunt who lives in the United States you said the aunt in Shepparton has spent some of the money she was going to provide so it was no longer available.

14. In terms of study, you say you have completed an Advanced Diploma of Leadership and Management and you provided a letter dated yesterday from an education provider called Orange International College that says:

    The student whose details appear below has studied at the Orange International College satisfactorily met all the course requirements as of 2 December and is eligible to graduate.  Was enrolled as a fulltime international student in an Advanced Diploma of Leadership and Management.  The course commenced on 22 May 2017 and completed studies on 2 December 2018.  The student has been issued a full qualification certificate and record of results along with this letter.

15. But you say they have not provided you with qualifications or the certificate.  However, what we have done here today is gone in and had a look at their website because when I asked you about this course and the fact that you live in Shepparton and why you had chosen this course you said, well, because I was able to do it coming to Melbourne to study only one day a week, which I used to do on a Monday.

16. So we went in and had a look at the Orange International College website and specifically looked up your course, the Advanced Diploma of Leadership and Management, it very clearly says it is an 18 month course, which is the duration of the course that you studied and it says it is a course that requires 20 hours per week of fulltime study.

17. Now, you cannot do 20 hours a week study in one day and when I ask what is going on, you provide no satisfactory answer.  You say, well, they said it would have been handy if you could, you know, come in perhaps another day a week but you did not.  So I have grave questions about this course that you have studied. 

18. You say your partner is a chef in Shepparton, works at King City Japanese Restaurant, although he has no qualifications, you say the restaurant have taught him his course.

19. And when I ask why you want this visa and what are the plans, you say you want to do a Graduate Diploma of Management and you provide a Certificate of Enrolment showing that you are enrolled in a Graduate Diploma of Management course scheduled to run from 28 January 2019 until 26 January 2010.

20. When I ask why you want to do a Graduate Diploma of Management you say it will enable you to manage an aged care facility.  When I ask what things you expect to learn from this Graduate Diploma of Management and ask how many units you need to complete to graduate in this course?  You say four.  You are unable to name any of the units in the course or provide any description of what they are about.

21. So it is apparent that you have got no idea what this course is about.  Once again when we look it up on the Internet it shows that to complete the course you must complete two core units and six additional units, so it is eight units that you have got to complete, not four.  So you have enrolled in a course that you know absolutely zero about, so you have done no homework or no research.

22. And you say at the end of that you would like to do a Bachelor of Nursing.  And I say that seems extraordinary, why would you do that given if what you want to do is manage an aged care facility and you have got all these other courses?  Why would you do a Bachelor of Nursing?  And you make no bones about it you say, well, nursing is a pathway to permanent residence in Australia.  I say why not do the studies at home, and you have no satisfactory reason whatever.

23. The situation is that your previous student visa expired on 16 June 2017.  On the same day that your visa expired you lodged an application for a further student visa.  The timing of these events indicates to me that your motivation is not academic achievement but an attempt to use the student visa program to remain in Australia.

24. From the evidence before me I am certainly not satisfied that you are a genuine temporary entrant.  However, I will leave that aside for the moment because the reason your application was refused was because you had not provided satisfactory financial evidence.

25. Despite having sent you a letter acknowledged your application and inviting you to provide extra evidence, which you did not do, we then send you an invitation to the hearing three weeks ago and invite you to provide all this evidence and we detail the financial evidence that you need to provide.  You do not provide it.  And yesterday you provide some financial evidence of support from a woman in the United States who you say is your aunt, however you have provided no evidence of the relationship between you and that woman.  And you say if given more time you will be able to provide evidence of the relationship.

26. In the circumstances I believe that you have been put on notice a number of times about the evidence required.  You had ample time and opportunity to provide the evidence but have failed to do so.  I am not prepared to grant further time for the submission of further evidence.

27. Your application was refused because you failed to provide evidence that you had access to funds to satisfy the financial capacity requirements.  And the Tribunal is not satisfied that you have provided evidence to date that you have access to those funds and therefore finds you do not satisfy clause 500.214.

28. It is therefore the decision of this Tribunal to affirm the decision under review.

    DECISION

29. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member