[2004] MRTA 2313

CATCHWORDS: Review of visa refusal - Subclass 572 - 572.223 - genuine applicant for entry and stay as a student

DECISION: The Tribunal affirms the decision under review, finding that the review applicant is not entitled to the grant of a Student (Temporary) (Class TU) visa.

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the delegate). Ms Thi Minh Nguyen (the review applicant) is a national of Vietnam and was born on 28 July 1974. The review applicant applied for a Student (Temporary) (Class TU) visa on 6 March 2002. The delegate's decision to refuse to grant the visa was made on 16 May 2002.

The review applicant lodged an application for review with the Tribunal on 23 May 2002. The decision is reviewable by the Tribunal (pursuant to subsection 338(2) of the Act) and the application for review is valid.

The law, policy and other materials immediately relevant to this review are:

Part 4, Division 3 of Schedule 5A of the Regulations

Procedures Advice Manual 3: Generic Guidelines G - Student Visas

Commonwealth of Australia Gazette No. GN 42, 23 October 2002, Assessment Levels for a Passports Issued by Foreign Countries in Relation to Each Subclass of Student Visa for the purposes of Regulation 1.41.

GN 28, 17 July 2002 - Specification of an alternative English language proficiency test to the International English Language Testing System (IELTS) for the purposes of clause 5A102 of the Migration Regulations 1994

Qu v Minister for Immigration & Multicultural Affairs [2001] FCA 1299 (12 September 2001)

The Department refused the visa application because the review applicant did not satisfy clause 572.223 of Schedule 2 to the Regulations. The delegate found that the review applicant did not satisfy clause 572.223 because the review applicant did not provide evidence as required under Schedule 5A of the Regulations. Specifically, the delegate was not satisfied that the review applicant had the financial capacity to undertake the proposed course of study without contravening any condition relating to work (subparagraph 572.223(2)(a)(ii)).

The relevant issue is whether the review applicant is a genuine applicant for entry and stay as a student, having regard to the factors identified in clause 572.223. This clause reads as follows:

572.223 The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

(a) evidence given in accordance with Schedule 5A in relation to:

(i) the applicant's English language proficiency for the purposes of the course; and

(ii) the financial capacity of the applicant to undertake the course without contravening any condition of the visa relating to work; and

(b) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

In Qu the Federal Court considered the operation of the various factors (a) to (d) of subclause 560.224(1). This is the equivalent provision to 572.223 under the previous student visa regime. Gray J held that a decision-maker "is obliged to engage in a balancing exercise" when applying subclause 560.224(1), and weigh the various factors (a) to (d) against one another in reaching a finding as to whether an applicant is a genuine applicant for entry and stay as a student.

The Tribunal considers that the wording of clause 572.223, up until amendments were made on 1 March 2002, is materially similar to the wording of 560.224(1). It follows that the rule in Qu continues to apply to clause 572.223 up until 1 March 2002. Therefore in considering whether the review applicant is a genuine applicant for entry and stay as a student, the Tribunal will consider the applicant against all factors in 572.223.

The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

The Tribunal has considered the Tribunal and Department case files. The material contained therein may be rendered as follows.

The review applicant holds a Vietnamese passport.

The review applicant first travelled to Australia on 27 May 1997 holding a Subclass 560 Student (Temporary) visa. This visa was due to expire on 12 October 1997. She was granted a further subclass 560 Student (Temporary) visa on 10 October 1997. This visa ceased to have effect on 8 November 1999. A further subclass 560 Student (Temporary) visa was granted to the review applicant on 10 December 1999.

On 15 May 2000 the Department cancelled the review applicant's student visa under section 116 of the Act on the grounds that the review applicant had failed to comply with condition 8202. The review applicant and her child were then detained under section 189 of the Act. On remittal from the Full Federal Court the Tribunal set aside the Department's decision to cancel the visa on 11 April 2001. However on the same day the Department again cancelled the review applicant's visa, this time under section 109 of the Act on the grounds of a breach of section 103 (provision of bogus documents). The Tribunal on review overturned this decision on 1 August 2001. The review applicant's student visa was re-instated and the review applicant was released from detention.

The review applicant's subclass 560 Student (Temporary) visa ceased to have effect on 7 March 2002. The review applicant currently holds a bridging visa granted on the basis of her present application for review.

The review applicant studied an English course at Strathfield International English Centre, this course commenced on 2 June 1997 and she successfully completed the course on 19 September 1997. She claims to have commenced a Diploma of Business Management at NSW Business College on 13 October 1997 and studied at the College until 8 October 1999, when it ceased operating. She was enrolled in a Diploma of Information Technology course at Astral College and Language College from February 2000 to May 2000 (when her visa was cancelled and she was placed in detention). During her detention, Astral Commerce and Language College ceased operating on 6 April 2001. On 1 August 2001, the review applicant was released from detention. On 20 August 2001 she commenced a Diploma in Business Studies at NSW International College. She was expecting to complete this course on 20 August 2003.

On 2 June 2003, the review applicant made a statutory declaration which attests to the above. However, she adds that NSW International College was closed in April 2002 and she transferred to the Australian College of Technology to study a Diploma of Business (Administration). To substantiate this claim, she has provided a copy of a CoE and receipt for payment of course, showing course start date of 21 August 2003, and an expected completion date of 24 October 2003. She concludes by stating that

I believe that the current study would enhance my career in Vietnam. I would have more chance to find a good job in Vietnam because foreign education is highly regarded in Vietnam.

The review applicant submitted the following as evidence of her financial capacity:

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Certified copies of Commonwealth Bank statements of account for the period 15 January 2002 to 28 June 2002 in the name Nguyen Minh Thi. During this period the balance in the account ranged from $781.80 (opening balance) to $16,065.88;

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A statutory declaration from Nguyen Thi Bich Lien and Chau Kieu Nhi stating that they will provide financial support to the review applicant. They claim to be the review applicant's sister and brother. To substantiate this claim, a copy of the review applicant's household registration card, with selected translation, shows that the review applicant is the younger sister of Nguyen Thi Bich Lien. Mr Chau Kieu Nhi is actually the review applicant's brother-in-law. A copy of the marriage certificate of the review applicant's sister and the brother in law has been submitted;

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Certified copies of a Commonwealth Bank passbook in the joint names "Ms Lien Nguyen" and "Mr Kieu Whi Chau" for the period 17 December 2001 to 20 May 2002. The balance during this period the balance ranges from $25.14 (7 February 2002) and $21,534.61.

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A statement from the proprietor of the Blue Ginger Restaurant dated 19 March 2002 that Mr Kieu Nhi Chau has been an employee of the business for the past 4 years and is on a wage of $440.00 per week.

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A certified copy of a letter (and translation) from the review applicant's parents. The letter sets out, among other things, their willingness to provide financial support for her study expenses. It also states that a friend of the review applicant will be bringing $4,000.00 from her parents when she comes to Australia. An airline ticket for this person was also provided.

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Copies of two remittance receipts issued to Nguyen Tmac by Saigon Money Faster on 22 December 2001 and 28 January 2002. These are both for amounts of AUD5,000. There is no evidence on file which shows that these amounts have been entered into the bank account of either the review applicant or her sister.

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A letter from the review applicant's stated brother and sister to the Department dated 22 April 2002 outlining that they have $20,000.00 for the review applicant's expenses. This is comprised of $10,000 from the review applicant's parents and $10,000 that Kieu Nhi Chau has saved from his work.

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The review applicant's representative claims that the review applicant has asserted that she is able to provide a loan offer from a financial institution in Australia. However, no supporting evidence has been provided.

The review applicant was requested to provide evidence of completion of secondary schooling. She submitted a copy (with translation) of her Diploma Graduation Certificate in Accounting, showing that she graduated in 1995 from Vietnam. The name of the institution is not apparent from the translation.

The review applicant has submitted evidence of studying at Astral Commerce & Language College in the form of a copy of a CoE. The proposed course started date was 7 February 2000 to be completed by 7 February 2002. A copy of a letter from the College dated 28 June 2000 states that she commenced there on 14 February 2000 and studied there until 10 May 2000, and the college was closed for holidays between 28 March to 30 April 2000. The Director of the College mentions that he talked with the review applicant about her poor attendance and he concludes by stating that when she did attend, she took her studies seriously.

The student visa granted to the review applicant on the basis of her proposed studies at Astral Commerce & Language College was subject to, among others, conditions: 8105, 8202, 8206, 8501, 8506, 8105, 8517. As evidence of compliance with condition 8202 (following the reinstatement of her student visa), the review applicant has submitted:

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A certified copy of a letter from the NSW International College dated 5 April 2002. The letter states that since she commenced studying at that college on 20 August 2000, and has an attendance record to date of 96%. However, the corresponding CoE shows a course start date of 20 August 2001 for a Diploma in Business Studies, due for completion by 20 August 2003. The review applicant paid 6 months tuition fee until 20 August 2002 on 25 February 2002, and provided a certified copy of a statement of her results from August 2001 to April 2002.

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A certified copy of a letter dated 20 May 2002 from the Australian College of Technology in Broadway showing attendance of 93% since she commenced study there in April 2002.

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A certified copy of a results slip issued on 29 January 2003 by the Australian College of Technology in the city which shows that that review applicant had an attendance record of 100% for Term 3, 2002 and 95% for Term 4, 2002.

The review applicant has provided 3 CoEs from the Australian College of Technology, numbered 6024164, 8789E59 and B0D9921. The course start dates in each of the CoEs are for 17 April 2002, 27 September 2002 and 21 August 2003 respectively. The course end dates are 20 August 2003 for the first 2, and 24 October 2003 for the third CoE.

On 17 December 2003 the Tribunal wrote to the review applicant asking her to provide evidence that was relevant to the review of the decision. The evidence was that she was enrolled in a course, and that she had the financial capacity to meet the expenses of the course as required under the legislation. On 19 December 2003 the review applicant's representative advised the Tribunal that the review applicant had completed her course in October 2003. The representative advised that the review applicant did not plan to continue her studies in the near future.

On 14 January 2004 the Tribunal invited the review applicant to a hearing to be held at 9.00 am on 23 March 2004. The invitation was sent to the review applicant at the last address for correspondence she had provided to the Tribunal.

On 19 March 2004 the review applicant contacted an officer of the Tribunal. She advised the officer that her daughter was ill and that she did not know whether she would be able to attend the hearing on 23 March 2004. The officer advised the review applicant to contact the Tribunal on 22 March 2004 if she wished to re-schedule the hearing.

The review applicant did not contact the Tribunal on 22 March 2004. The Tribunal attempted to contact the review applicant by telephone but was unable to reach her.

The review applicant did not appear at the hearing on 23 March 2004 at 9.00 am.

The Tribunal is satisfied that on 14 January 2004 the review applicant was invited, pursuant to section 360, to appear before the Tribunal at 9.00 am on 23 March 2004.

The Tribunal is satisfied that review applicant received the invitation. The invitation was sent to the last address for correspondence the review applicant had provided to the Tribunal. The review applicant contacted the Tribunal on 19 March 2004 to discuss the hearing.

The review applicant did not appear before the Tribunal at 9.00 am on 23 March 2004.

The Tribunal determines, pursuant to section 362B, to make a decision on the review without taking any further action to allow or enable the review applicant to appear before it.

At the time the visa application was lodged, Class TU contained a number of subclasses. The review applicant has made claims with respect to Subclass 572. There is no evidence to suggest that the review applicant meets key criteria for the other subclasses. The Tribunal finds that the review applicant is not entitled to the grant of any of the other subclasses of visa.

The applicable Assessment Level (regulations 1.41 and 1.42)

In accordance with regulation 1.41 the Minister must specify by Gazette Notice an assessment level for a passport issued by a foreign country, in relation to each subclass of student visa, to which an applicant for a student visa who seeks to satisfy the primary criteria will be subject.

As the application for the visa was made, but not finally determined before 1 November 2002 the applicable Gazette Notice is GN 42, 23 October 2002. This specifies that a holder of a passport issued by Vietnam, applying for a subclass 572 visa is subject to Assessment Level 3.

Despite this, the review applicant may be considered under Assessment Level 2 if she meets the requirements of regulation 1.42(2) or 1.42(6). The review applicant claims that she should be assessed under Assessment Level 2.

In order to meet subregulation 1.42(2), subregulation (3) or (4) must apply to the review applicant (paragraph 1.42(2)(e)). The review applicant last course was completed in October 2003. The review applicant must commence a new course in order to be granted the visa. It follows that subregulations 1.42(3) and 1.42(4) do not apply to the review applicant. The Tribunal finds that the review applicant does not meet subregulation 1.42(2).

Subregulation 1.42(6) does not apply to the review applicant because she has not completed a course of study in Australia as the holder of a student visa in the period 1 July 2001 to 31 March 2002 (subregulation 1.46(5)).

On this basis the review applicant fails to meet the requirements of both 1.42(2) and 1.42(6). The Tribunal will therefore consider the review applicant against the requirements of Assessment Level 3, should such an assessment prove to be necessary.

The Tribunal firstly considers subclause 572.223(c). The review applicant completed her last course in October 2003. On 17 December 2003 the review applicant was invited, pursuant to section 359(2), to provide evidence of her enrolment in a course. On 19 December 2003 the review applicant advised that she had completed her course in October 2003 and that she did not plan to continue her studies. The Tribunal finds that, at the time of decision, the review applicant is not enrolled in a course of study. The Tribunal is further satisfied that, at the time of decision, the review applicant has not been enrolled in a course of study for 5 months. The Tribunal cannot, in those circumstances, be satisfied that the review applicant is a genuine applicant for stay as a student. The review applicant does not meet subclause 572.223(c).

The Tribunal now considers subclause 572.223(a). The review applicant has not provided evidence of enrolment. It is not possible therefore to determine whether the review applicant has the financial capacity to undertake a course without contravening any conditions of the visa relating to work. The financial capacity required to undertake any particular course cannot be calculated. In any event, the visa applicant has not provided any current evidence of her financial circumstances. The Tribunal therefore finds that the review applicant does not meet subclause 572.223(a).

As the Tribunal has found that the review applicant does not meet subclauses 572.223(a) and 572.223(c) the Tribunal finds that the review applicant does not meet clause 572.223. The Tribunal reaches this decision notwithstanding it has not considered subclause 572.223(b). A finding in favour of the visa applicant in relation to subclause 572.223(b) would not outweigh the adverse findings that the Tribunal has made in relation to subclause 572.223(a) and subclause 572.223(c).

As the review applicant does not satisfy clause 572.223 the review applicant is not entitled to the grant of a 572 visa.

As the Tribunal has found that the review applicant is not entitled to the grant of any of the subclasses of visa contained within Student (Temporary) (Class TU) visa class, the review applicant is not entitled to the grant of a Student (Temporary) (Class TU) visa. The application for review must therefore fail.

The Tribunal affirms the decision under review, finding that the review applicant is not entitled to the grant of a Student (Temporary) (Class TU) visa.