Tan (Migration)
[2020] AATA 1094
•15 April 2020
Tan (Migration) [2020] AATA 1094 (15 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Kim Kian Tan
CASE NUMBER: 1829909
HOME AFFAIRS REFERENCE(S): BCC2018/2383896
MEMBER:Mark Bishop
DATE:15 April 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 15 April 2020 at 12:29pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant failed to provide requested information – failed to attend hearing – failed to provide evidence of Genuine Access to Funds –genuine temporary entrant criterion not met –no current confirmation of enrolment –decision under review affirmedLEGISLATION
Migration Act 1958, ss 65, 379
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.214
Education Services for Overseas Students Act 2000CASES
MIAC v Li (2013) 249 CLR 332STATEMENT 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 24 September 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 3 June 2018. 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 (the Regulations) because the applicant failed to provide evidence of Genuine Access to Funds (GAF).
On the scheduled hearing date a Tribunal Officer “attempted to call the applicant for preliminaries at 09:20AM and received no answer. The Tribunal Officer attempted to call the Migration Agent (MA) at 09:21AM and received a number not in service message. The Tribunal Officer attempted to call the applicant again for hearing at 09:35AM and received no answer. (Audio recorded).
The applicant did not appear before the Tribunal. See below at paragraphs 11 to 17.
On 27 March and 9 April 2020 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 15 April 2020. 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. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
The applicant sought an adjournment. The request for adjournment was refused by the Tribunal (see paragraphs 11 to 17 below). However the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. 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) the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. 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 date of decision was 24 September 2018.
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 GAF.
On 8 April 2020 the Migration Agent (MA) for the applicant wrote to the Tribunal in the following terms:
·The client, Kim Kian TAN, has appointed me to represent him for this AAT Review case. Because he's currently physically unable to take part in the scheduled hearing on the 15th Apr 2020 (Please see the attached medical certificate). For this medical reason, he hereby to request for adjournment.
·Attached to the request for an adjournment was a copy of a medical certificate dated 7 April 2020 that stated “Mr Kim Kian Tan is being treated for medical conditions (severe sore throat, hoarse and anxiety symptoms) and from the period 7 April 2020 to 21 April 2020 will be unable to work/study/attend court”
On 2 August 2018 the President of the Administrative Appeals Tribunal brought down a Practice Direction relating to the conduct of reviews under Migration and Refugee Division. Clause 7 of the Practice Direction dealing with Migration and refugee Matters provides as follows:
Seeking an adjournment
7.3If you seek an adjournment of a scheduled hearing, you must contact us immediately and state the reasons why the date is unsuitable.
7.4If you seek an adjournment of the hearing on medical grounds, you must contact us as soon as possible and must provide a certificate from a medical practitioner certifying that you are unable to attend and give oral evidence, and indicating when the medical practitioner considers you will be able to attend a hearing and give oral evidence. If you are a representative acting on behalf of an applicant, you must submit such medical certificates no later than two business days before the scheduled hearing day (where available).
The Tribunal turns to consider this material. 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’.
On 27 March 2020 in the letter of invitation the Tribunal advised the applicant “the member who will conduct the hearing will be in Melbourne and we are arranging for you to appear by telephone”. Accordingly the applicant was not required to physically attend the hearing rooms for the review hearing. The applicant was free to participate in the review hearing from any location including his home. The medical certificate did not identify the nature of the illness allegedly suffered by the applicant. The medical certificate did not state why this unidentified medical condition prevented the applicant from giving evidence over the phone. The medical certificate stated the applicant had a “severe sore throat, …” It did not state he was unable to participate in a hearing over the phone and give oral evidence. It did not state he should not participate in a hearing over the phone and give oral evidence. It did not explain why a severe sore throat diagnosed on 7 April 2020 would not be expected to recover sufficiently to give oral evidence over the phone or instructions to a MA to respond on his behalf in a hearing. The medical certificate did not state when the applicant would be able to “attend a hearing and give oral evidence”.
The Tribunal advised the applicant the request for an adjournment was refused and the hearing would proceed as scheduled.
The Tribunal again wrote to the applicant on 8 April 2020 requesting him to provide the following documents 7 days prior to the scheduled hearing date of 15 April 2020:
·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.
The applicant did not provide the documents as requested.
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.
A COE or other form of proof of enrolment 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 detail (e.g. course commencement and conclusion dates, course particulars, education provider particulars, tuition costs and amounts paid) and course costs of an applicant for a student visa and is evidence of course fees that is an element of financial capacity as outlined in cl.6(2) of LIN 19/198 Financial Capacity Instrument for the purpose of cl.500.214.
In his application for a student visa dated 3 June 2018 the applicant declared he held two Confirmation of Enrolment’s (COE’s) numbered 9B1B7611 and 9B1B7535 and did not hold evidence of his intended study other than these two COE’s. The applicant did not provide copies of these COE’s to the Department or the Tribunal. In a written statement to the Department dated 30 May 2018 the applicant advised he would conclude his studies at Wall Street College Melbourne in June 2019 and return to Malaysia. The applicant did not advise of any intent to continue his studies or seek further enrolment in an approved course after June 2019. The applicant did not advise of any enrolment in any course of study after June 2019. The applicant did not provide any proof of current enrolment to the Tribunal. The Tribunal gives this declaration no weight.
In his application for a student visa dated 3 June 2018 the applicant declared he had access to sufficient funds to support himself for the total period of his stay in Australia and that he understood further evidence of funds may also be requested. He declared he had “other financial support from an individual and the funds would be provided by his parent who had a deposit of $32,000 in a financial institution.” He provided a copy of a “Student Financial support Statement” to the Department dated 26 July 2018. The Department wrote to the applicant and requested he provide specific further information as to evidence of bank deposits and a trail of the relevant funds transfer. The applicant provided further financial documentation to the Department.
The delegate made a finding that “the documents provided by the applicant do not demonstrate that they have genuine access to a sufficient level of funding as required by the instrument. As per the request for them to do so on 13 August 2018, the applicant did not demonstrate that the funds were available to them in an Australian bank account registered in their name. No evidence of funds in an Australian bank account has been included in the application. Taking into consideration all documents provided the applicant, I cannot be satisfied the current evidence provided by the applicant demonstrates they have genuine access to sufficient funds to support themselves throughout their proposed period of study in Australia”.
The Tribunal gives this declaration outlined in paragraph 23 above no weight.
On 21 November 2018 the delegate made a finding the applicant failed to provide adequate evidence of GAF. See paragraph 3 above.
An applicant is required to provide current information to the Tribunal to satisfy GAF as set out in cl.500.214.
On 27 March and 9 April 2020 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:
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.
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 1994 (the Regulations) for the grant of the visa” as outlined in paragraph 19 above.
In addition on 27 March 2020 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.
The applicant has been in receipt of numerous requests to provide information or documents that go to evidence of GAF to the Tribunal. Provision of appropriate documents prior to the hearing would enable the Tribunal to write a decision on the papers that is favourable to the applicant as is often the case. In such a case there is no longer a necessary to conduct a hearing as provision of the documents as requested obviates the need for a hearing.
Except as outlined above the applicant did not respond to the Tribunal in any way. The applicant did not provide any documentation to the Tribunal. The applicant did not provide any information or documents that were not before the delegate.
The applicant did not provide a current COE or other form of proof of enrolment to the Tribunal. Without a current COE or other proof of enrolment (such as a letter of confirmation from an education provider or a receipt for payment of tuition fees) the Tribunal is unable to calculate evidence of financial capacity as outlined in LIN 19/198.
The applicant did not provide any documents that went to GAF.
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.
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)
6 Subclause 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.
7 Subclause 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.
8 Subclass 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.
…
10 Evidence 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.
11 Pro 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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Appeal
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