Wu, Ka Man [2001] MRTA 2135 (23 May 2001)

CATCHWORDS: Review of visa refusal - Subclass 560 - student - clause 560.213 - substantial compliance with conditions of visa last held - condition 8202 - comprehension of English paragraph 560.224(1)(b)

DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Student (Temporary) (Class TU) 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 WU Ka Man (the visa applicant), a national of Hong Kong, born on 10 April 1981, applied for a Student (Temporary) (Class TU) visa on 29 March 2000 (D1, f.10). The delegate's decision to refuse to grant the visa was made on 1 June 2000 (D1, ff.16-12).

2. The visa applicant lodged an application for review to the Tribunal on 23 June 2000 (T1, f.8). 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. 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

Clauses 8105 and 8202 of Schedule 8 to the Regulations

Procedures Advice Manual 3: Generic Guidelines G - Student visas

Procedures Advice Manual 3: Schedule 2 - Student - Visa 560

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.

T.1 - MRT case file N00/03419, folio numbered 1-87.

D.1 - DIMA file CLF2000/029847, folio numbered 1-18.

8. The visa applicant was granted her previous Student (Subclass 560) visa in Australia on 27 August 1999 (T1, f.22). That visa expired on 11 March 2000. It appears that that visa was granted to allow the visa applicant to undertake Foundation Studies with the University of Wollongong (D1, f.9).

9. The visa applicant applied for a further student visa on 10 March 2000 to undertake a Bachelor of Commerce at Wollongong University (D1, f.7). In support of this visa application the visa applicant lodged her sister's bank account statements covering the period 26 November 1999 until 25 February 2000 (D1, ff.7-6). The accounts show two substantial deposits of $5 000 and $11 625 followed shortly after by withdrawals of similar amounts. The visa applicant also submitted her Certificate of Attendance showing a 73% attendance record from 2 November 1998 until 25 June 1999 and a University Entrance Certificate (D1, ff.5-4).

10. The visa applicant's proposed course is for a Bachelor of Commerce (CRICOS Course Code: 027464A) at the University of Wollongong (CRICOS Provider Code: 00102E). The visa applicant's Confirmation of Enrolment was supplied (D1, f.2).

11. The delegate stated that the visa was not granted on the basis that the visa applicant had not provided sufficient evidence that she had complied substantially with the condition 8202 attached to her visa or that she had sufficient financial ability to undertake the course without contravening any condition of her visa relating to work (D1, f.14). The DIMA file does not record any request for the visa applicant to supply the required information.

12. The delegate explained the reasons for his decision as follows (D1, f.13):

* The visa applicant did not submit any evidence of attendance or academic transcripts for the period of her last visa.

* The bank statements provided show injections of relatively large sums of money which are then withdrawn shortly after. The bank statements do not otherwise evidence regular banking transactions. The bank statements indicate that for the period 21 December 1999 until 1 February 2000 the visa applicant had a total of $37.80 in her bank account. He was not satisfied that the visa applicant has access to sufficient funds to enable her to afford to live in Australia as the holder of a Student (Temporary) visa.

13. The visa applicant stated in support of her application for review that (T1, ff.10-11):

* She was unable to obtain the required 80 per cent attendance rate because her elder sister, who she lives with, was seriously ill and she had been given the responsibility to take care of her sister by her parents.

* At the beginning of August 1999 she realised that her previous academic record was sufficient for her to gain entry into the Bachelor of Commerce course and therefore she neglected to apply for evidence of her attendance from 27 August 1999 until 11 March 2000. She was advised that if she were accepted as a student at Wollongong University then it would not be necessary to apply for the certificate. During this period she decided to spend the time more constructively and was given the money by her parents to travel around Australia.

* She is enrolled with Wollongong University and would like to continue her studies.

* There is a misunderstanding regarding her financial statements. The large amounts of money were withdrawn shortly after there deposit and transferred to her elder sister because she had been given responsibility for her (the visa applicant's) money by their parents.

14. The visa applicant was sent a letter pursuant to s.359(1) of the Act on 8 December 2000 requesting attendance certificates and visa labels (T1, f. 49).

15. The visa applicant did not answer the correspondence and was sent a further letter pursuant to s.359(2) of the Act on 22 January 2001 (T1, f. 54). The visa applicant did not respond to this letter and the Tribunal attempted to contact the visa applicant on various occasions (T1, ff. 52 & 55) to no avail. Finally, the visa applicant did make contact with the Tribunal but appeared unable to understand the conversation with the Tribunal officer (T1, f. 56).

16. Subsequently the visa applicant sent a submission explaining her situation, an Enrolment Record from University of Wollongong and a Statement of Financial Viability (T1, ff.57-62).

17. A hearing was held on 30 April 2001 and the visa applicant requested a Cantonese interpreter. During the hearing the Tribunal became concerned by a number ofobservation:

* The visa applicant seemed completely unaware of the notion of an oath or affirmation and the Tribunal had to spend over 5 minutes explaining the concept to the visa applicant both in English and by interpretation in Cantonese.

* The Tribunal was concerned at the high rate of failure in the Enrolment Record of the visa applicant and a `show cause/disciplinary action' notation on the Record. The Tribunal requested clarification from the visa applicant and was met with an evasive response along the lines that she did not understand the Tribunal's questions.

* The Tribunal then requested the interpreter to wait and asked the visa applicant whether she was (based on evidence on file) capable of answering the following question in English: "Did she believe (in view of her academic record) that she had adequate English to complete a university course". The visa applicant did not reply. Subsequently, she remarked, separately, that if she was accepted by the University, therefore, she must have adequate English.

* The Tribunal asked the visa applicant questions concerning the fact that she had been pursuing a Foundation Studies course called the University Entrance Certificate at University of Wollongong between 2 November 1998 and 25 June 1999. She failed the attendance requirements and did not meet the course requirements (T1, f.4-5). There had then been a gap in her studies between the course and the commencement of the academic year at University of Wollongong on 28 February 2000. The Tribunal asked why had she breached her condition 8202 by only achieving 73% attendance. The visa applicant responded that she had quit her Foundation Studies course because she had been accepted for enrolment by the University. Her other excuse at folio (T1, f. 10) was that the reason for her failure of condition 8202 was her sister's illness and the need to help her. Subsequently she was granted another visa on 27 August until 11 March 2000. The Tribunal then noted her statement (T1, f. 10) that:

"I was told that would not be necessary to request an evidence of attendance (document) for the period 27 August 1999 until March 11 2000". I was told that I was accepted as a student of the University of Wollongong, it would not be necessary to apply for any certificate of attendance".

* The Tribunal asked her during the hearing whom she had consulted to get such authoritative advice. She was unable to say. The documentation requested was one of the requirements of the delegate at first instance which she was unable to fulfil (T1, f. 4). According to her submission (T1, f. 10) she then decided to go travelling around Australia. This would explain the `lack of any evidence of attendance or academic transcripts' for the period 27 August 1999 until 11 March 2000 as noted by the delegate at first instance (T1, f. 4) and her failure of condition 8202 during that time.

* The Tribunal attempted to confirm from the visa applicant that she had adequate English sufficient to satisfy criterion 560.224 (1)(b). The Tribunal found that the visa applicant was only able to explain her situation in Cantonese and was largely unable to answer any questions asked in English despite being a second year University Bachelor of Commerce student.

18. 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.

19. One of the criteria 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).

20. At the time of the visa application, the visa applicant last held a Subclass 560 visa, which appears to have included the following conditions:

(b) attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider or otherwise; and

(c) if attendance cannot be evidenced, achieve an academic result for the course that is certified by the education provider to be at least satisfactory; and

comply with any requirement of the education provider in relation to payment of fees for the course.

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.

8303 - The holder must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community.

8501 - The holder must maintain adequate arrangements for health insurance while the holder is in Australia.

8503 - The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

8517 - The holder must maintain adequate arrangements for the education of any school-age dependant of the holder who is in Australia for more than 3 months as the holder of a Subclass 560 (as a person who has satisfied the secondary criteria) or 563 visa.

21. The Tribunal must have regard to the visa conditions that were applied when the visa was granted (Pradhan).

22. 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 said:

...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.

23. The delegate considered that the visa applicant had not provided any information evidencing that she had complied substantially with the conditions attached to his visa in relation to condition 8202. Subsequently, the visa applicant had submitted her University Entrance Certificate results her University of Wollongong course.. Evidence at the hearing corroborates the finding of the delegate at first instance that the visa applicant has breached condition 8202. The visa applicant has also a significant degree of failure in her course and has been given a `show cause' qualification but was accepted for re-enrolment with a diminished subject load (T1, f. 58).

24. Another criterion raised by the delegate's decision which needs to be satisfied at time of decision for the grant of a Subclass 560 visa is subclause 560.224 of Schedule 2 to the Regulations. Subregulations (4) and (5) refer to Burmese citizens and are not relevant. Subregulations (1), (2) and (3) state:

(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.

25. Despite the fact that the visa applicant has already commenced studying her proposed course and has already completed studies in Australia, the Tribunal is not satisfied that the applicant's comprehension of English is sufficient for the course. This is based on the written evidence on Tribunal files and oral evidence at the hearing.

26. 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').

27. The delegate considered she was unable to be satisfied that the visa applicant meets clause 560.224 (1)(a) because the visa applicant's financial statements provided indicated that substantial amount were withdrawn shortly after they were deposited and no indices of usual banking transaction were reported. The bank statements provided appear to belong to the visa applicant's sister, who according to the visa applicant has been given responsibility for the visa applicant's finances. The visa applicant's Confirmation of Enrolment indicated that she had prepaid $5 375 in tuition fees. The visa applicant also submitted her Medibank Private receipt for Overseas Student Health Cover from 17 February 2000 until 16 February 2001 (D1, f.11). The visa applicant has asserted that she was in a sound financial position under the guardianship of her elder sister and the visa applicant has supplied evidence of her current financial ability to the Tribunal. The Tribunal is satisfied that the visa applicant can satisfy the requirements as to financial viability.

28. The Tribunal finds that the visa applicant did not comply substantially with the conditions of the visa last held at the time of the visa application and does not satisfy clause 560.213 and clause 560.227 of the Act.

29. The Tribunal makes the further finding that she does not satisfy the criterion in clause 560.224(1)(b) at date of decision. Both clauses are prerequisites for the grant of a Student 560 visa.

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