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austlii:cth/MRTA/2001/3963
procedural. The Tribunal remitted the visa application to the Department of Immigration and Multicultural Affairs for reconsideration, directing that the applicant meets clauses 560.212, 560.213, 560.222,...
The Tribunal reviewed a refusal of a student visa based on the delegate's view that the applicant had breached a 20‑hour work‑week condition and was not a genuine student because of a gap between courses. After examining employer letters, bank statements, enrolment documents and other evidence, the Tribunal concluded the applicant had substantially complied with the work‑hours condition, satisfied enrolment, financial and health insurance requirements, and was a genuine student. The Tribunal remitted the application to the Department with directions that the applicant meets specified statutory criteria, leaving remaining administrative matters to the Department.
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Ms Ruth Julius Nassari, a Tanzanian national, held a Subclass 560 student visa in Australia that ran until 12 November 2000. She lodged an application for another Student (Temporary) visa on 10 November 2000. A delegate refused that application on 5 January 2001. The delegate's reasons emphasised two principal concerns: (a) that the applicant had not substantially complied with condition 8105, the work‑hours limitation which restricted work to no more than 20 hours per week while the institution was in session; and (b) that a five month gap between completion of her Diploma in Information Technology and commencement of a Bachelor of Nursing gave rise to doubts about her genuineness as a student (see [1], [7], [10], [32]).
No linked legislation citations have been extracted yet.
The applicant sought review by the Migration Review Tribunal. In support of review she provided academic results, confirmation of enrolment for the Bachelor of Nursing at the Australian Catholic University, multiple bank statements, a letter from her employer at Anglicare (Wendy Willett) confirming part‑time employment while studying and increased hours only during holiday periods, an itinerary for planned travel to Tanzania, and later additional financial and health‑cover documentation (see [8]-[13], [23]). The Tribunal requested and received further documents on 13 August 2001 including employer confirmation of ongoing part‑time employment (14.5 hours/week outside holidays), additional bank statements, letters confirming living arrangements, and results for first semester at the University (see [13]).
After analysing the material, the Tribunal concluded the applicant had substantially complied with the conditions of her last‑held visa including condition 8105, satisfied the enrolment requirement and Overseas Student Health Cover, and was a genuine student for the purposes of clause 560.224 (see [23]-[34]). The Tribunal therefore remitted the application to DIMA with the direction that the applicant met clauses 560.212, 560.213, 560.222, 560.224, 560.226 and 560.227, leaving the Department to consider any remaining criteria (see [35]-[36]).
The Tribunal's decision turned on two linked assessments: (1) whether the applicant had substantially complied with the work condition 8105 during the currency of the earlier Subclass 560 visa, and (2) whether the applicant was a genuine student as required by clause 560.224.
On substantial compliance, the Tribunal applied the well‑known analytical approach adopted from authorities cited in the reasons. The Tribunal quoted the factors identified by Sackville J in Kim v Witton (as cited in Baidakova) and referred to Baidakova directly. Those factors include the nature and significance of any breach, whether the applicant deliberately flouted the condition, and whether any misunderstanding or department conduct contributed to the breach (see [21]). The Tribunal then evaluated the contemporaneous evidence: employer deposit patterns, the employer's letters confirming part‑time hours during study and increased hours during holidays, the college calendar which highlighted holiday periods (including the Olympic closure), and evidence of a planned and then cancelled trip to Tanzania with prepaid salary, all providing an explanation for the periods of increased work (see [8], [11]-[13], [23]).
With respect to genuineness under clause 560.224, the Tribunal examined financial capacity (bank statements and a letter of support from relatives), evidence of Overseas Student Health Cover, confirmation of enrolment at the Australian Catholic University, and academic results demonstrating continuing study progress. The Tribunal acknowledged that the five month gap between courses was a significant and undesirable feature, but concluded that, in context, including the early completion of the Diploma, limited availability of short courses (noting Olympic period closures), and the applicant's travel plans, the gap did not demonstrate lack of genuineness (see [27]-[33]).
Because the Tribunal decided several essential statutory criteria were satisfied (560.212, 560.213, 560.222, 560.224, 560.226 and 560.227), it exercised its power to remit the matter to the Department, directing that the applicant met those criteria and leaving remaining administrative considerations to the Minister or a delegate (see [4], [34]-[36]).
Before this decision, established authorities on substantial compliance and assessment of student genuineness were already in place. The Tribunal expressly relied on prior Federal Court authority and Tribunal practice: it cited Baidakova and Pradhan, and quoted the factors in Kim v Witton (via Baidakova) for assessing substantial compliance ([5], [19], [21]). The decision does not alter legal doctrine. Rather it is an application of existing tests to the facts.
After the decision, the law remains the same in principle. The decision is an instance of applying the accepted framework: the Tribunal will weigh the specific factual matrix, including employer statements, financial records and course calendars, when deciding whether a breach of a visa condition is 'substantial' and whether the applicant is a 'genuine student'. The practical takeaway is that documented contemporaneous employer confirmations and clear explanations for any periods of increased work or gaps between courses can be decisive in satisfying the Tribunal that substantial compliance and genuineness exist.
Paragraph 21, Quoted factors for substantial compliance:
Paragraph 24, Finding of substantial compliance:
Paragraph 32, Gap between courses:
Paragraph 35, Remittal rationale:
This decision is most relevant where an applicant to a student visa:
In such factual matrices the Tribunal will examine the character and significance of alleged breaches, employer confirmations, academic results, college calendars and financial and health‑cover evidence, and may find substantial compliance and genuineness where the facts align as they did for Ms Nassari ([21]-[33]).
This deep dive is limited to the judgment text itself and the authorities the Tribunal cited. The Tribunal relied on Baidakova and Pradhan, and quoted Kim v Witton (via Baidakova) in framing the substantial compliance inquiry (see [5], [19], [21]). The decision applies those authorities rather than creating new law. The judgment does not record subsequent judicial treatment of this decision itself; practitioners should search reported subsequent decisions for any treatments or departures. Within the judgment, the Tribunal explicitly frames its role as applying legislation and policy, and remitting matters to the Department where appropriate (see [3]-[4], [35]-[36]).
Scope of documentary proof: The decision shows strong weight given to employer letters and contemporaneous bank statements. It is not a fully general statement on what specific documentary threshold must be met to prove substantial compliance, so uncertainty remains about borderline cases with less direct employer corroboration (compare [23], [28]).
Degree of permissible gap between courses: The Tribunal held a five month gap, explained by early completion and holiday/college closures, was not fatal to genuineness. However there is no rigid rule in the decision about the maximum length of gap acceptable in other contexts; much depends on explanation and supporting evidence (see [32]).
Interaction with departmental policy and discretion: The Tribunal remitted the matter after directing satisfaction of several clauses, but left remaining criteria to the Department. How different Tribunal findings on substantial compliance interact with other discretionary or policy considerations on remittal will continue to be fact‑sensitive (see [4], [35]).
Application where documentation is weaker or conflicting: The Tribunal relied on consistent employer confirmations and financial documents. The decision leaves open how the Tribunal would resolve cases where documents conflict, or where employer statements are less precise about hours (see [23], [28]).
Practitioners should treat this decision as an instance of the established analytical approach to substantial compliance and genuineness. Its practical lesson is that contemporaneous, detailed documentary evidence (employment confirmations, college calendars, bank statements, COE, health cover and academic results) can successfully rebut an adverse delegate view on work condition breaches and genuineness, leading the Tribunal to remit the matter to the Department for final administrative consideration (see [23]-[36]).
CATCHWORDS: Review of visa refusal - Subclass 560 - student - clause 560.213 - substantial compliance with conditions of visa last held - condition 8105
DECISION: The Tribunal remits the application made by the visa applicant for a Student (Temporary) (Class TU) visa to the Department of Immigration and Multicultural Affairs for reconsideration with the direction that the visa applicant meets the following criteria for a Subclass 560 visa:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the delegate). Ms Ruth Julius Nassari (the visa applicant), a national of Tanzania, born on 20 August 1964, applied for a Student (Temporary) (Class TU) visa on 10 November 2000. The delegate's decision to refuse to grant the visa was made on 5 January 2001.
2. The visa applicant lodged an application for review to the Tribunal on 31 January 2001. The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.
3. The Migration Act 1958 (the Act) and the various regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of Departmental policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural Affairs (DIMA). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.
4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to DIMA for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.
5. The legislation, policy and other materials that are immediately relevant to this review are:
Part 560 of Schedule 2 to the Regulations
Procedures Advice Manual 3: Generic Guidelines G - Student visas
Procedures Advice Manual 3: Schedule 2 - Student - Visa 560
Procedures Advice Manual 3: Schedule 8 - Visa Conditions
Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436
Pradhan v Minister for Immigration and Multicultural Affairs [1999] FCA 1240
6. The Tribunal generally has regard to the regulations as the regulations stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.
7. The Tribunal had the MRT case file N01/00564 and DIMA case file CLF2001/712. These files indicate that the visa applicant entered Australia on a Subclass 560 visa on 29 July 1998. The visa was valid until 31 December 1998. On 13 November 1998 the visa applicant was granted a further student visa which remained valid until 12 November 2000. This visa was subject to the following conditions - 8105, 8202 and 8501. The visa applicant has since held a bridging visa granted on the basis of the application for a visa, which is the subject of this review. This visa is also subject to the 8105 `work limitation' condition.
8. The visa application was made on 10 November 2000. In support of her application, the visa applicant submitted the following documents:
* Academic results for Diploma in Information Technology from Skywell College granted on 14 December 2000. The results show that the visa applicant passed all subjects.
* Confirmation of Enrolment for Bachelor of Nursing at Australian Catholic University (CRICOS code 001293G) commencing 5 February 2001, and due for completion on 31 November 2003. The document shows prepaid fees of $4960 and coverage for overseas student health cover.
* An opinion of a Medical Officer of the Commonwealth that the applicant meets health requirements, but, a health undertaking is required.
* HSBC bank statements for September 2000 and November 2000 showing small deposits and a November closing balance of $8722.09.
* Westpac bank statements showing a closing balance of $5435.61 for the period 27 September 2000 to 8 December 2000. The account shows fortnightly deposits of $400.
* Commonwealth bank statements showing a closing balance of $4234.19 for the period 21 July 2000 to 18 December 2000. The account shows regular deposits of varying sizes from what appear to be employers.
9. A record of telephone conversation for 3 January 2001 between the visa applicant and a DIMA officer documents that the visa applicant was studying at Skywell College until August 2000 and would not recommence study until February 2001. The visa applicant stated that since completing her studies, she had been working for more than 20 hours per week, but that whilst she was studying, she did not work for more than 20 hours per week.
10. The delegate stated that the visa was not granted on the basis that he was not satisfied that the visa applicant had substantially complied with condition 8105, that is `no more than 20 hours work per week while institution in session'. The visa applicant had said that she ceased studying in August 2000 and was then working more than 20 hours per week. The delegate stated that evidence of employer deposits whilst studying and after studying were similar, thereby implying that the visa applicant had been working more than 20 hours per week whilst still studying. The delegate also considered that the length of time between courses (5 months) was excessive and found that this went to the visa applicant's genuineness as a student.
11. The visa applicant's migration agent, Mr Grant Williams stated in a submission when lodging the application for review that all the visa applicant's work in excess of 20 hours was undertaken in the period between finishing one course and starting the next one. He also stated that the delegate had given no clear reason why the visa was refused on the ground of genuineness. Mr Williams stated that the visa applicant completed her Diploma of Information Technology ahead of schedule and immediately took steps to enrol herself in a new course. There were no short courses available during the latter part of 2000 as most colleges were closed during the Olympic period plus she had been planning a five-week trip to Tanzania to visit her husband and children. The visa applicant later cancelled these travel plans on 22 December 2000 following the DIMA decision to refuse the student visa.
12. The following documents were submitted to the Tribunal together with the application for review:
* Itinerary for travel to Tanzania departing Australia on 24 December 2000 and returning 29 January 2001.
* Letter dated 22 January 2001 from Wendy Willett, Director of Nursing for Anglicare confirming that the visa applicant has been employed by them since 17 August 1998 and has only worked a 20 hour week unless she is on holiday from study. Ms Willett advised that the visa applicant was on holiday for a couple of weeks from 3 July 2000 and again from August 2000 when she started working longer hours. Ms Willett confirms that the visa applicant had been planning a 2-month holiday from work and had had her salary for the entire 2 months prepaid into her account.
* Letter of offer for Bachelor of Nursing from Australian Catholic University dated 30 August 2000.
* Copy of Skywell College calendar for 2000 highlighting holiday and Olympic periods.
13. On 13 August 2001, in response to a request by the Tribunal, the visa applicant provided the following additional documents:
* Letter dated 31 July 2001 from Wendy Willett, Director of Nursing for Anglicare confirming that the visa applicant is employed in a permanent part time position for 14.5 hours per week, except those periods when she is on holiday from University. Ms Willett fully supports the visa applicant's nursing studies.
* Health insurance statement showing full health coverage until 29 January 2002.
* Letter of financial support from the visa applicant's sister and brother-in-law including copy of Tanzanian bank statement covering period 7 May 2001 to 17 July 2001 and business licence.
* HSBC bank statement for July 2001 showing a closing balance of $8920.30.
* Commonwealth bank statement covering the period 4 January 2001 to 26 July 2001 showing a closing balance of $3136.35, total credits of $9382.30 and total debits of $7110.41. The statement shows regular deposits from Anglicare.
* 2 letters confirming the visa applicant's living arrangements in Australia.
* Statement of Current Financial Ability dated 9 August 2001 showing total average net income of $200 per week and expenses of $106 per week.
* Confirmation of enrolment for semester 1 and 2 at Australian Catholic University plus results for first semester showing pass and credit results for all subjects attempted.
14. At the time the visa application was lodged, Class TU contained a number of subclasses. The only subclass in respect of which any claims have been advanced is Subclass 560. There is no evidence to suggest that the visa applicant meets key criteria for the other subclasses.
15. The criteria for a Subclass 560 visa which are relevant to a consideration of whether the delegate's decision should be affirmed, or the application for the visa be remitted to the Department, are set out in clauses 560.212, 560.213, 560.222, 560.224, 560.226 and 560.227 of Schedule 2 to the Regulations.
16. The visa application was made on 10 December 2000. The last held visa was a Subclass 560 visa, which was valid to 12 December 2000. The Tribunal finds that the visa applicant held a Subclass 560 visa at the time of application and meets clause 560.212.
17. A criterion to be satisfied at the time of application for the grant of a Subclass 560 visa is that `the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject' (clause 560.213 of Schedule 2 to the Regulations). At the time of decision, the visa applicant must continue to satisfy the criterion in clause 560.213 (clause 560.227 of Schedule 2 to the Regulations).
18. At the time of the visa application, the visa applicant held a Subclass 560 visa, which was subject to the following conditions: 8105 (`no more than 20 hours work per week while institution in session'), 8202 (`meet course requirements') and 8501 (`maintain adequate arrangements for health insurance while in Australia'). The visa was valid from 13 November 1998 to 12 November 2000.
19. The Tribunal must generally have regard to visa conditions that were applied when the visa was granted (Pradhan).
20. The delegate found that the visa applicant had not substantially complied with condition 8105. The full text of conditions 8105, 8202 and 8501 appear below:
As the visa was granted before 1 November 2000, this version of 8105 applies:
8105 - The holder must not engage in work in Australia (other than in relation to the holder's course of study or training) for more than 20 hours a week during any week when the institution at which the holder is studying is in session.
As the visa was not in effect on 21 December 2000 and was granted before 1 December 1998 this version of 8202 applies:
8202 - The holder must satisfy course requirements.
8501. The holder must maintain adequate arrangements for health insurance while the holder is in Australia.
21. In Baidakova, Katz J referred to matters to be taken into account when deciding whether an applicant has substantially complied with a visa condition. Katz J quoted the following passage from the judgement of Sackville J in Kim v Witton [1995] FCA 1508; (1995) 59 FCR 258:
...the Tribunal should consider the relevant circumstances of the case. Without being exhaustive, these include:
. the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted;
. whether or not the applicant deliberately flouted the condition; and
. if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.
22. There is no suggestion and the Tribunal finds that there is no evidence to suggest that the visa applicant has not complied substantially with conditions 8202 and 8501.
23. The visa applicant has submitted that she only worked more than 20 hours per week when the institution she was attending was not in session and when she finished her course in August 2000. The Tribunal considers that the letter from Wendy Willett, Director of Nursing for Anglicare, dated 31 July 2001 supports this submission. The Tribunal has no evidence that the visa applicant did not comply substantially with condition 8105 during the period 13 November 1998 to 12 November 2000.
24. The Tribunal finds that the visa applicant complied substantially with the conditions of the visa held at the time of the visa application and continues to do so at the time of decision. The Tribunal is satisfied that the visa applicant meets clauses 560.213 and 560.224.
25. The visa applicant has provided evidence of confirmation of enrolment from the Australian Catholic University, which shows that the visa applicant is enrolled in a Bachelor of Nursing (CRICOS code 001293G), starting on 5 February 2001 and due for completion on 31 November 2003. The Tribunal finds that the visa applicant satisfies clause 560.222.
26. Clause 560.224, must be satisfied at the time of decision. Subclauses (4) and (5) refer to Burmese citizens and are not relevant in this case. Subclauses (1), (2) and (3) are set out below:
(1) Subject to subclauses (4) and (5), the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard:
(a) to the financial ability of the applicant to undertake the course without contravening any condition of the visa relating to work; and
(b) subject to subclauses (2) and (3), to the applicant's comprehension of English for the purposes of the course; and
(c) to whether the applicant intends to comply with any conditions subject to which the visa is granted; and
(2) If the Minister has regard to the applicant's comprehension of English, the Minister may require the applicant to undertake an English language test that is conducted by an agency other than Immigration.
(3) If the applicant is required to undertake a test and does not undertake it, or does not pass it, the Minister is not to grant the visa.
27. In regards to financial ability, Departmental policy (PAM 3: Generic Guidelines G - Student visas) states that relevant factors to consider include: the student's capacity to cover return fares and tuition fees and expenses; capacity to repay loans; prospects of obtaining part-time work; and capacity to support dependants. Further, the policy states that it is unlikely that potential income earned from working within the work condition would cover expenses - and provides estimates of a student's annual living expenses with percentage increments where a student has dependants. Other factors that are relevant to the Tribunal's consideration are the length of the proposed course and the applicable work condition (in this case: condition 8105 (`no more than 20 hours work per week while institution in session')).
28. The visa applicant has submitted evidence that she is supported financially by Mr and Mrs Silaa from Tanzania. They have provided a letter of support and proof of their ability to provide the visa applicant with financial support. The visa applicant has submitted bank statements, which indicate to the Tribunal that she has the financial ability to undertake the course without contravening any visa condition relating to work.
29. Before considering the other elements of clause 560.224, it is useful to set out the likely period and conditions of the visa if granted. Having regard to Subdivision 560.61, the visa conditions, which would apply are: 8105 (`no more than 20 hours work per week while institution in session'), 8202 ('meet course requirements'), 8206 ('must not change enrolment within first 12 months'), 8501 ('maintain adequate arrangements for health insurance while in Australia'), 8517 (`maintain adequate arrangements for school age children') and 8533 (`notify education provider of change of address'). Conditions 8303 ('must not become involved in disruptive activities'), 8503 ('must not be granted a further visa, other than a protection visa') and 8522 ('must not depart Australia later than family member who met primary criteria') may also be imposed but there seems to be no reason to do so in this case. The visa period would normally be until 15 March of the year following the last year of study. (see PAM3: Generic Guidelines G - Student visas, section 16).
30. The Tribunal is satisfied that the visa applicant complied with the visa conditions of her last held visa and has no reason to consider that the visa applicant does not intend to comply with the visa conditions, which would be imposed if granted.
31. The visa applicant has been in Australia studying for over three years, and appears not to have had difficulties studying; therefore the Tribunal is satisfied that the visa applicant's comprehension of English is sufficient for the course.
32. The delegate queried the break of five months between the completion of the visa applicant's Diploma of Information Technology and the commencement of the Bachelor of Nursing. The visa applicant explained that she finished her Diploma of Information Technology more quickly than expected (she was due to finish in October 2000) and that she was unable to find a suitable short course to undertake between finishing her Diploma and commencing the Bachelor of Nursing in February 2001. The Tribunal acknowledges that a five month gap is a significant period but notes that if the visa applicant had not finished early, the gap would have still been about three to four months. The Tribunal considers that although having such a significant gap between courses is not desirable, it does not mean that the visa applicant is not a genuine student.
33. Having regard to all the relevant factors, the Tribunal finds that the applicant is a genuine applicant for entry and stay as a student and satisfies clause 560.224.
34. The visa applicant has provided evidence of Overseas Student Health Cover up to 29 January 2002. The Tribunal is satisfied that the visa applicant meets clause 560.226.
35. Given the findings made above, the appropriate course is to remit the application for the visa to DIMA to consider the remaining criteria for the visa. The Tribunal is not in a position to decide the remaining criteria.
36. The Tribunal remits the application made by the visa applicant for a Student (Temporary) (Class TU) visa to the Department of Immigration and Multicultural Affairs, for reconsideration with the direction that the visa applicant meets the following criteria for a Subclass 560 visa:
(1995) 59 FCR 258
The Tribunal remitted the visa application to the Department of Immigration and Multicultural Affairs for reconsideration, directing that the applicant meets clauses 560.212, 560.213, 560.222, 560.224, 560.226 and 560.227 of Schedule 2 to the Migration Regulations (see [36]).