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Parwoto, Rosalina [2001] MRTA  1186  (28 March 2001)

Last Updated: 24 May 2001

 [2001] MRTA 1186 

CATCHWORDS: Review of visa refusal - Subclass 560 - student - clause 560.213 - substantial compliance with conditions of visa last held - condition 8202 -560.224(1)(a) - financial ability to undertake the course

VISA APPLICANTS: Rosalina Parwoto

Arbiyanno Dharma Putra

TRIBUNAL: Migration Review Tribunal

PRESIDING MEMBER: George Haddad

MRT FILE NUMBER: N00/01563

DIMA FILE NUMBER: CLF2000/11153

DATE OF DECISION: 28 March 2001

AT: Sydney

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

STATEMENT OF DECISION

APPLICATION FOR REVIEW

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 Rosalina Parwoto (the visa applicant), a national of Indonesia, born on 23 September 1971, applied for a Student (Temporary) (Class TU) visa on 13 March 1999. Evidence on file indicates that the visa applicant married Mr Arbiyanno Dharma Putra (the secondary visa applicant) on 7 October 1999. On 30 September 1999, the visa applicant lodged another application including her husband on the basis that he is a student dependant on her. The delegate's decision to refuse to grant the visas was made on 3 March 2000

JURISDICTION AND STANDING

2. The visa applicant lodged an application for review to the Tribunal on 31 March 2000. 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.

LEGISLATION AND POLICY

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 or the Department). 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:

Legislation:

Item 1222 of Schedule 1 to the Regulations

Part 560 of Schedule 2 to the Regulations

Schedule 8 to the Regulations

Directions under section 499 of the Act:

Nil

Departmental policy:

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

Cases:

Nil

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

EVIDENCE

7. The Tribunal has the following documents:

MRT case file N00/01563

DIMA file CLF2000/11153

8. The Departmental file and the Tribunal file disclose the history of the application to be as follows:

9. The visa applicant entered Australia on a Student visa on 7 July 1996. The visa was valid until 13 January 1997. The visa applicant was granted a series of Student visas subsequently and has travelled outside Australia between 9 December 1997 and 8 February 1998 as the holder of a Student visa. The last Student visa was granted on 13 August 1997 and was valid until 15 March 1999. The visa applicant has held a bridging visa since 15 March 1999 granted on the basis of the application for a visa which is the subject of this review.

10. The visa application was made on 13 March 1999. At the time of application, the visa applicant held a substantive visa, being a Subclass 560 visa.

11. The visa applicant studied English at the Centre of English Teaching at the University of Sydney in 1997. The visa applicant then studied in a Master of Commerce at the University of Sydney in 1998.

12. The visa applicant provided a Confirmation of Enrolment from University of Western Sydney, Nepean stating that she was enrolled in a Master of Business Operations, which commenced on 30 August 1999 and proposed to finish on 31 December 2000. This is a registered course of 16 months duration.

13. The visa applicant lodged another application for a Student visa on 30 September 1999, including her husband as a student dependant. In this application, the visa applicant mentioned that her intended course is Certificate III in Business Marketing from Sydney Business Travel Academy. The visa applicant did not provide a Confirmation of Enrolment in this course.

14. The visa held at the time of application was subject to the following conditions:

8202 - The holder must satisfy course requirements.

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.

8206 - The holder must not change his or her enrolment from enrolment in a course offered by an education provider (the original course) to enrolment in a course offered by another education provider:

(a) if the original course is for 12 months or more - within the first 12 months of that course; and

(b) if the original course is for less than 12 months - before the end of that course.

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

8506 - The holder must notify Immigration at least 2 working days in advance of any change in the holder's address.

15. The delegate stated that the visa was not granted on following grounds:

* The visa applicant did not demonstrate a financial ability to undertake the course without contravening any condition of the visa relating to work.

* The visa applicant did not provide the attendance certificates and academic results for the courses undertaken since the grant of her last student visa.

* The visa applicant did not provide the specialist report, therefore the delegate was not able to sure that the visa applicant meets public interest criterion 4005.

16. The Tribunal received an application for review on 31 March 2000.

17. The visa applicant tendered the following with the review applicantion:

* A final report from Macquarie Pathology Services

* A letter from Australia Post confirming the claim by the visa applicant that certain articles of post had been delayed due to an error by Australia Post.

* A transcript of results and a certificate of attendance relating to the secondary visa applicant.

* A marriage certificate containing marriage registration details between the visa applicant and the secondary visa applicants.

* A letter from the visa applicant as an attachment to Section 6 of the Migration Review Tribunal Application for Review form (Form MRT01).

18. The visa applicant stated when lodging the application for review that she was studying in two courses and did not realise the due date of submitting the requested documents. The visa applicant said that she was not familiar with DIMA's process of submitting documents otherwise she could have submitted her documents one by one.

19. The visa applicant was sent a letter dated 31 October 2000 inviting her to provide further information to the Tribunal. This letter was returned to the Tribunal on 28 November 2000. It was not marked with a "return to sender" or "not known at this address" note.

20. A further letter dated 16 January 2001 was sent inviting the visa applicant to appear before the Tribunal to give evidence and present arguments relating to issues arising in relation to her case. The proposed hearing was set for 11.00am on 13 February 2001. The visa applicant was asked to confirm whether she wished to appear before the Tribunal. She was also advised that if she was unable to attend the scheduled hearing, she should advise the Tribunal as soon as possible of the reasons and the Tribunal will consider rescheduling the hearing. The letter invited the visa applicant to contact the Tribunal if she had any questions. The letter provided the details of a contact officer of the Tribunal and the offer to reverse telephone charges. The visa applicant was further advised that if she failed to appear before the Tribunal at the scheduled time, the Tribunal has the discretion to make a decision

21. On 2 February a Tribunal officer attempted to contact the visa applicant on telephone numbers provided in a letter the visa applicant tendered to the Tribunal with the review application. The answer from the landline number was that it was the wrong number for the visa applicant. The person who answered the mobile number provided claimed he was a friend of the visa applicant but that he did not know where she was and that the visa applicant had given him her mobile phone in lieu of money she owed him.

22. The Tribunal conducted a search of the visa applicant's movement details. At 2 February 2001 the record indicated the visa applicant had not departed Australia.

23. The visa applicant failed to appear at the scheduled time of the hearing. To date the Tribunal has had no contact from the visa applicant.

FINDINGS

24. Taking into account the steps that were taken and which are listed above, the Tribunal considers that the visa applicant was given sufficient opportunity to submit further information and appear before the Tribunal to present arguments relevant to her case. Therefore the Tribunal has taken the decision to proceed to deciding the review application on the evidence it has before it.

25. 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.

26. The criteria for a Subclass 560 visa which are relevant to the Tribunal's consideration are set out in clauses 560.212, 560.213, 560.222, 560.224 and 560.227 of Schedule 2 to the Regulations

27. 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). Regulations

28. The delegate considered that the visa applicant had not complied substantially with condition 8202.

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

30. On 13 March 1999 and 30 September 1999, DIMA requested the visa applicant to provide academic results for all courses undertaken since last student visa granted for herself and her husband. The visa applicant did not provide academic results for herself. She provided a Certificate of attendance and an academic transcript for her husband.

31. The visa applicant did not provide a Confirmation of Enrolment in a Certificate III in Business Marketing from Sydney Business Travel Academy, which commenced on 27 April 1999 and finished on 27 October 1999.

32. The Tribunal in a letter dated 31 October 2000 requested information from the visa applicant in order to determine whether the visa applicant has substantially complied with the conditions that the visa last held was subject. The visa applicant failed to provide this information. The Tribunal having regard to the evidence before it finds the visa applicant fails to substantially comply with the visa conditions that the last held visa was subject and thus the visa applicant fails to meet criteria in clause 560.213

33. The clause, 560.224, must be satisfied at time of decision. Subregulations (4) and (5) refer to Burmese citizens and are not relevant in this case. Subregulations (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

(d) to any other relevant matter.

(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.

34. As the visa applicant has been in Australia studying for more than 4 years, and appears not to have had difficulties studying, the Tribunal is satisfied that the visa applicant's comprehension of English is sufficient for the course.

35. 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'), 8506 (`notify Immigration of change in address') and 8517 (`adequate arrangements for school age dependants'). 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 one month after the expected date of completion of the course (see PAM3: Generic Guidelines G - Student visas, section 16).

36. The delegate stated that one of the reasons the visa applicant was refused a student visa was because she did not submit the requested documents to substantiate that she has the financial ability to undertake the course. The visa applicant did not provide the requested bank statements for last six months. No other details were provided to demonstrate a financial ability to undertake the course without contravening any condition of the visa relating to work.

37. The visa applicant said in her letter tendered with the review application that she would provide the rest of the documents later. The visa applicant was invited to provide further information to assist the Tribunal in determining whether she is able to demonstrate that she has the financial ability to undertake the course without contravening the visa condition limiting work. However at the time of this decision and after considerable effort to obtain further information, the Tribunal has received no further documents.

38. Based on the evidence before it, having regard to all factors in 560.224 (1)(a) to (d) the Tribunal finds that the visa applicant cannot be said to be a genuine applicant for entry and stay as a student, thus she fails to meet criteria set out in clause 560.224.

39. In the circumstances it is not necessary for the Tribunal to consider other criteria.

40. Having considered all of the evidence before it, the Tribunal finds that the visa applicant has not substantially complied with the conditions to which the last held visa was subject. The Tribunal is not satisfied that the visa applicant is a genuine applicant for entry and stay as a student. Thus the visa applicant fails to meet criteria in clauses 560.213 and 560.224. Accordingly the appropriate course of action is to affirm the decision under review.

41. The visa applicant having failed to meet the criteria for the grant of a Subclass 560 Student visa, the secondary visa applicant, included on the visa applicant's visa application dated 30 September 1999 as a student dependent and the visa applicant's husband, must also fail.

DECISION

42. The Tribunal affirms the decision under review, finding that the visa applicants are not entitled to the grant of Student (Temporary) (Class TU) visas.