1411731 (Migration)

[2015] AATA 3273

1411731 (Migration) [2015] AATA 3273 (12 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Satpal Singh

CASE NUMBER:  1411731

DIBP REFERENCE(S):  BCC2014/1211948

MEMBER:Gabrielle Cullen

DATE:12 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 572 Vocational Education and Training visa:

·cl.572.223(2)(a); and

·cl. 572,223(2)(c) of Schedule 2 to the Regulations.

Statement made on 12 August 2015 at 12:06pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 June 2014 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 May 2014. At the time of lodgement, Class TU contained a number of subclasses. With limited exceptions not relevant to this case, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which he or she is enrolled or has an offer of enrolment as his or her principal course, and the corresponding subclass for which that type of course has been specified by the Minister under r.1.40A of the Migration Regulations 1994 (the Regulations).

3. In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in a Certificate IV in Accounting, Diploma in Accounting and Advanced Diploma in Accounting. The visa was refused as the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student as he did not meet the financial requirements as required by cl.572.223 of Schedule 2 to the Regulations.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. In the present case, as the applicant is currently enrolled in an Advanced Diploma of Accounting as his principal course, the subclass that may be granted is Subclass 572. The issue in the present case is whether the applicant is a ‘genuine applicant for entry and stay as a student’ having regard to the prescribed matters. With the exception of the student guardian visa, this is a requirement for all student visas. For Subclass 572, this requirement is contained in cl.572.223, which is extracted in the attachment to this decision.

6. To meet this criterion, the applicant in this case must give evidence in accordance with the requirements set out in Schedule 5A to the Regulations for the highest assessment level for the applicant. Broadly speaking, these requirements relate to English language ability, financial capacity, and other prescribed matters, and differ depending upon the subclass sought and the applicant’s assessment level.

   Does the applicant meet the applicable evidentiary requirements in Schedule 5A?

7. The assessment level that applies to the applicant is the highest assessment level at the time of application for the relevant course of study for the subclass of visa: r.1.42.  ‘Assessment level’, and ‘highest assessment level’ is defined in r.1.03.  ‘Assessment level’ means the level of assessment specified by the Minister for a kind of passport.  The highest assessment level for a single course of study that is a registered course, is the assessment level for that course of study.  If the applicant is undertaking 2 or more registered courses of study, the highest assessment level is the assessment level for those courses (excluding any ELICOS course) that has the highest number.

8. In this case, the applicant holds a passport of India. The assessment level for a holder of such a passport for Subclass 572 (the subclass for the applicant’s principal course) is assessment level 3: IMMI 14/014. In this case, the highest assessment level to which the applicant is subject is assessment level 3.

9. The evidentiary requirements for this assessment level for Subclass 572 are set out in Schedule 5A.

10. The following relevant documents and evidence have been provided by the applicant in submissions to the Tribunal and in evidence at hearing.

    ·CoEs for a Diploma in Accounting from 13 April 2015 to 10 April 2016 and Advanced Diploma in Accounting from 16 May 2016 to 14 May 2017.

    ·Certificate indicating the applicant successfully completed a Certificate IV in Accounting dated 13 April 2014.

    ·Certificate indicating the applicant successfully completed an Advanced Diploma of Management dated 12 May 2014 and Diploma of Management on 19 November 2013.

    ·Tax receipts confirming payment of course fees for the Certificate IV in Accounting and Advanced Diploma of Management.

    ·Receipts indicating the applicant has paid $4600 towards the Diploma of Accounting and owes $2000 for this course as at 30 July 2015.

    ·Letter from the Australian Vocational Learning centre dated 3 August 2015 indicating the applicant is a student there and has completed a Certificate IV in Accounting and is enrolled in a Diploma and Advanced Diploma of Accounting. It indicates all courses are conducted in English and he has maintained an 80% attendance level.

    ·Loan sanction letter for 15 Lakhs in the name of Gurbaj Singh for his son, the applicant.

    ·Evidence that the applicant successfully completed the Indian Senior Secondary Certificate.

    ·Student Financial Support Statement signed by the applicant’s father indicating he will provide financial support to the sum of $31,700 for his education in Australia and will have access to the funds. He also declares his income is sufficient to accumulate to the level of funding that he is providing to the applicant, dated 6 August 2015.

    ·Affidavit of Support signed by the applicant’s father Gurbaj Singh, indicating he is the father of the applicant and that he is sponsoring his son to study in Australia and has sufficient funds to pay for his son’s entire expenditure for him to study in Australia.

    ·Declaration from Julhinder Sandhu indicating that the applicant’s parents lent $4000 to her family in February 2015 when her parents were in need of money

    ·Commonwealth account of the applicant evidencing transfers from Gurbaj Singh of $2000 on 7 August 2015 and from Harpal Singh on 11 May 2015 in the sum of $4787 and receipts evidencing transfer of funds

    ·Bank Statements from the applicant’s father from Union Bank.

    ·Statutory declaration from the applicant’s brother who resides in Australia, Dharampal Singh, claiming he is responsible for his brother.

    English language proficiency – clause 5A407

11. The evidence indicates the applicant successfully completed an Advanced Diploma of Managements in 2014. As the evidence indicates that less than two years before the date of the application as the holder of a student visa, the applicant successfully completed a substantial part of a course that was conducted in English and leading to a qualification from AQF at the Certificate IV or higher, he meets clause 5A407(d) and therefore clause 5A407.

    Other requirements - Clause 5A409

12. Clause 5A409 requires that he provide evidence that he has successfully completed secondary schooling to the year 11 equivalent and is enrolled in a vocational education and training course or enrolled in a prerequisite to a vocational education and training course. As the applicant has provided evidence of successfully completing Senior Secondary Schooling to year 12 and is enrolled in a Diploma in Accounting and Advanced Diploma of Accounting, the Tribunal finds he meets clause 5A409.

    Financial capacity requirements - clause 5A408

13. The applicant is required to give evidence of funds from an acceptable source that are sufficient to meet his course fees and living costs for the first 12 months. School costs are not relevant in this case as the applicant does not have any school age dependent children. 

    The ‘first 12 months’

    Financial capacity requirements - clause 5A408

14. The applicant is required to give evidence of funds from an acceptable source that are sufficient to meet his course fees and living costs for the first 12 months. School costs are not relevant in this case as the applicant does not have any school age dependent children. 

    The ‘first 12 months’

15. The ‘first 12 months’ is defined in Clause 5A101 as follows:

    first 12 months,

    for an applicant, means the period that:

    (a)      begins:

    (i)   if the application is made outside Australia — on the day of the applicant’s expected arrival in Australia; or

    (ii)  if the application is made in Australia — on the day that the student visa is expected to be granted to the applicant; and

    (b)      ends on the earlier of the following:

    (i)   the day 12 months after the beginning of the period;

    (ii)the last day of the applicant’s proposed stay in Australia.

16. In this case the first 12 months begins on the expected date of visa grant, which is approximately 14 September 2015. The first 12 months ends on the earlier date of either 12 months later or the last day of the applicant’s proposed stay in Australia.

17. The applicant’s principal course, the Advanced Diploma of Accounting has a proposed end date of 14 May 2017. This is a period of 19 months. As the course ends after the 12 month period, the Tribunal finds that ‘the first 12 months’ is a period of 12 months.

    Course fees

18. ‘Course fees’ are defined in Clause 5A101. The applicant’s CoE states that the total course fees for the Diploma of Accounting and Advcned Diploma of Accouning are $12,600. The Tribunal considers it appropriate to deduct from the total course fees, any amounts the applicant has already paid. The CoE and  receipts from his school  indicates the applciant has already paid $4,600 towards the fees.

19. The Tribunal therefore finds the applicant’s course fees that he still owes for the remaining period is $8,000.

    Living costs

20. ‘Living costs’ are $18 610 per year for a single person with no dependent children (subclause 5A104(1)).  This is the ‘basic rate’. As the Tribunal has determined the relevant period to be 12 months, the Tribunal finds the  living costs for the applicant will be $18, 610.

    Travel costs

21. ‘Travel costs’ are defined in Clause 5A101 as:

    travel costs,

    for an applicant, means the sum of costs for each of the applicant and any family applicant:

    (a)      if the applicant or family applicant is not in Australia when the application is made — of travelling to Australia; and

    (b)      of returning to the applicant’s home country at the end of his or her stay.

22. The applicant’s home country is India. The cost for one economy one way ticket from Sydney to India varies but is approximately $1,000.

    Total costs

23. In accordance with clause 5A408, the Tribunal finds that the applicant’s total course fees, living costs and travel costs for the first 12 months are as follows:

    Course fees $ 8 000

    Living costs for 10 months  $ 18 610

    Travel costs  $ 1 000

    Total  $ 27 610

24. The applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $27 610.

    Funds from an acceptable source

25. ‘Funds from an acceptable source’ is defined in subclause 5A408(2). In this regard the Tribunal accepts the evidence of the applicant that he is the son of Gurbaj Singh, the person named in the loans. The Tribunal accepts the applicant’s father is an acceptable individual.

26. ‘Financial institutution’ is defined in clause 5A101 as:

    financial institution

    means a body corporate that, as part of its normal activities:

    (a)      takes money on deposit and makes advances of money; and

    (b)      does so under a regulatory regime, governed by the central bank (or its equivalent) of the country in which it operates, that the Minister is satisfied provides effective prudential assurance. 

27. The Tribunal notes that Departmental policy PAM3 Schedule 5A Financial Capacity at 62.4 states that a list of acceptable financial institutions is maintained on the Australia Embassy’s website.  This provides that the Union Bank of India is an acceptable financial institution (see The Tribunal accepts it is a ‘financial institution’ for the purpose of clause 5A101.

28. The Tribunal accepts the loan is from a financial institution.

29. The documents provided to the Tribunal indicate that the funds from the loan are for the purpose to support the applicant’s study, living and travel expenses.  The Tribunal accepts that the applicant’s father is an individual who is providing support to the applicant.

30. The applicant has therefore provided evidence of a loan from a financial instituion totalling $15,00,000 Rupees, equivalent to $31, 808A ( which is more than the required amount of $27,610. The Tribunal is therefore satisfied that the applicant has provided evidence of a loan from a financial institution, made to, and held in the name of, an acceptable individual. The applicant has demonstrated that he has funds from an acceptable source in accordance with cl.5A408(2)(c).

31. The Tribunal is therefore satisfied that the applicant has funds from an acceptable source that are sufficient to meet his expenses for course fees, living costs and travel costs for the first 12 months. The applicant therefore meets cl.5A408(1)(a) and cl.5A408(1)(b).

32. The applicant has provided the Tribunal a declaration in the visa application stating that he has access to funds from an acceptable source that are sufficient to meet his costs for the remainder of her stay in Australia. The applicant therefore meets cl.5A408(1)(aa).  He has also provided a student visa financial support statement signed by his father indicating that the applicant has access to those funds.

33. The applicant must also show that the regular income of any individual providing the funds to him was sufficient to accumulate the level of funding being provided to that individual: cl.5A405(1)(c). Departmental Policy (PAM3-GenGuide G-Student Visas at 59.2) states that ‘generally, it should be unnecessary to verify the regular income of the individual providing funds if the source of funding is a bank loan, as the bank would have verified the income of the borrower before sanctioning the loan’. The Tribunal accepts the applicant’s evidence at hearing that the applicant father has a regular income to accumulate to the level of funding being provided to the applicant.

34. On the basis of this evidence, the Tribunal is satisfied that the regular income of the applicant’s father is sufficient to accumulate to the level of funding to be provided for the remainder of the applicant’s stay in Australia. The applicant therefore meets cl.5A408(1)(c).

35. In this case cl.5A40 (1A) does not apply to the applicant.

36. The Tribunal is therefore satisfied that the applicant meets all elements of clause 5A408 of Schedule 5A in relation to financial capacity.

    Conclusion – Schedule 5A

37. On the basis of the above findings, the Tribunal finds that the applicant has given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and Assessment Level 3, the highest assessment level for the applicant. Accordingly, the applicant satisfies the requirements of cl.572.223(2)(a).

    Does the applicant have access to funds as required by cl.573.223(2)(c)

38. The Tribunal must also be satisfied that, while holding the visa, the applicant will have access to the funds demonstrated or declared in accordance with the Schedule 5A requirements relating to financial capacity.

39. As indicated above, the applicant in his application declared that he has access to funds to support himself, has provided an Affidavit and Student Financial Support Statement indicating he has access to those funds. He has also provided evidence of a Commonwealth Bank account in his name with two transfers, one from his father in the sum of $2000 on 7 August 2015 and from his brother on 11 May 2015 in the sum of $4787. When asked at hearing why his brother transferred the funds, he indicated his brother works in the bank and sometimes sends the money. Receipts were also provided of these money transfers.

40. On the evidence before it, the Tribunal is prepared to accept that, while holding the visa, the applicant will have access to the funds demonstrated or declared in accordance with the Schedule 5A requirement

    DECISION

41. The Tribunal remits the application for Student (Temporary) (Class TU) visa for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 572 Vocational Education and Training visa:

    ·cl.572.223(2)(a); and

    ·cl.572.223(2)(c) of Schedule 2 to the Regulations.

    Gabrielle Cullen

    
    

    Member

    ATTACHMENT – Extracts from the Migration Regulations 1994

    572.223(1)     The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant meets the requirements of subclause (2).

    (2)An applicant meets the requirements of this subclause if:

    (a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

    (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

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

    (ii)any other relevant matter; and

    (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.