1413711 (Migration)

[2015] AATA 3721

1413711 (Migration) [2015] AATA 3721 (25 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MUHAMMAD NAUMAN AAISH

CASE NUMBER:  1413711

DIBP REFERENCE(S):  BCC2014/1397851

MEMBER:Karen Synon

DATE:25 November 2015

PLACE OF DECISION:  Melbourne

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) of Schedule 2 to the Regulations.

Statement made on 25 November 2015 at 11:03am

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 23 July 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 6 June 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 is enrolled or has an offer of enrolment as his 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 an Advanced Diploma of Information Technology.  The visa was refused because the applicant did not provide the evidence required to demonstrate he was a genuine student as required by cl.572.223 of Schedule 2 to the Regulations.

4. The applicant applied for review of the primary decision on 11 August 2014 and provided a copy of the department’s decision to the Tribunal.

5. This matter was originally constituted to Member Jordan who held a hearing in relation to the issues arising on the review on 20 March 2015.  Additional documents were requested by Member Jordan and provided to the Tribunal following the hearing.  When Member Jordan was no longer available to determine the case it was reconstituted to Member Synon who has finalised the matter.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case, as the applicant currently is enrolled in an Advanced Diploma of Information Technology 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.

8. 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.  Additionally, the Regulations require that the Minister is satisfied that: the applicant is a genuine student having regard to the stated intention to comply with the applicable visa conditions, and any other relevant matter; and that while the applicant holds the visa he will have access to the funds relied upon to satisfy the Schedule 5A financial capacity requirements.

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

9. 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.

10. In this case, the applicant holds a passport of Pakistan.  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/ 003.  In this case, the highest assessment level to which the applicant is subject is assessment level 3.

11. The evidentiary requirements for this assessment level for Subclass 572 are set out in Part 4 of Schedule 5A and are extracted in the attachment to this decision.

    English language requirements

12. The applicant has provided results of an IELTS test he sat on 7 February 2015 in which he received an Overall Band Score Result of 7.5 (@ folio 52).  He therefore meets 5A407(e) and consequently the English language proficiency requirements of Schedule 5A.

    Financial Capacity Requirements

13. The financial capacity the applicant must demonstrate is prescribed in 5A408.

14. Based on the certificate of enrolment provided by the applicant he will complete his study on 8 May 2016 and hence has approximately 5 months before completing his course.  The Tribunal therefore considers 6 months as the appropriate period for the calculation of the living costs, based on the day the student visa is likely to be granted.

15. The living costs are thus calculated as $9,305.

16. The Confirmation of Enrolment records the total course cost as $5,990.  As no evidence has been provided to the Tribunal that any of these course fees have been paid, the Tribunal has calculated the outstanding course costs as $5,990.

17. The Tribunal considers $1,000 to be the appropriate amount for calculation of travel costs.

18. The applicant must therefore demonstrate financial capacity in the following amounts:

Course fees	$5,990
Living costs	$9,305
Travel costs	$1,000
TOTAL	$16,295

1. During the hearing it was discussed with the applicant the necessity of him providing evidence of the availability of funds from at least 3 months prior to the lodgement of the visa application, which is from 6 March 2014.  He was also advised that the Tribunal must be satisfied about the accumulation funds relation to these funds.  The applicant gave oral evidence that his father owns a telecommunications company.  He said his income was sufficient to save this money.

2. Following the hearing the applicant provided the following relevant evidence:

   ·     A statement from the MCB Bank Limited recording a balance of 20,986€ at 27 February 2015 and relevantly that at 6 March 2014 the account had a credit balance of 21,041€.  The lowest point the balance reduced to in this account was 19,932€ on 4 August 2014.

   ·     A statement from the MCB Bank Ltd certifying that the applicant’s father opened his account, held in euros on 19 September 2007.

   ·     Five pages of bank statements from the National Bank of Pakistan in the name of the applicant’s mother recording regular cash and salary deposits from 1 January 2014 to 9 March 2015.

   ·     Three pages of bank statements from the National Bank of Pakistan in the name of the applicant’s father recording regular deposits from 1 January 2014 to 9 January 2015.

   ·     Two business invoices in relation to the applicant’s father’s business.

   ·     A signed statement of the applicant declaring he has access to reliable financial sources to cover the cost of his stay in Australia during his education.

   ·     A signed statement from the applicant’s father and mother declaring their willingness to support their son financially throughout his stay in Australia.

3. Based on the evidence provided from the MBC Bank the Tribunal is satisfied that the applicant has demonstrated financial capacity from an acceptable source, being a money deposit held by his father, who is an acceptable individual.  The Tribunal is further satisfied that his father demonstrated the accumulation of these funds by providing copies of his banking records with the National Bank of Pakistan.

4. In relation to the required demonstration of $16,295, the Tribunal notes that the MBC Bank balance of 20,986€[1] well exceeds this at 27 February 2015 and that the lowest account balance of 19,932€[2] at 4 August 2014 also well exceeds this.  The account held 21,040€ at the relevant period 3 months prior to the lodgement of the visa application.

   [1] Converted at decision date AUD $30,799.

   [2] Converted at decision date AUD $29,235.

5. In summary the applicant has provided evidence, to the Tribunal’s satisfaction, of funds from an acceptable source in excess of $16,295.  The acceptable source is a money deposit with the MCB Bank Limited held by the applicant’s father.  The applicant has also provided evidence of his relationship to his father, who the Tribunal finds is an acceptable person.  The Tribunal is further satisfied that the money deposits have been and continue to be accumulated through regular business funds derived from the applicant’s father’s private business interests.

6. Therefore the applicant meets the financial capacity requirements of 5A408.

   Other Requirements

7. The Tribunal is satisfied, on the basis of the documentation provided, that the applicant has given evidence that he successfully completed secondary schooling to year 11 and that he is enrolled in a vocational education and training course.  He thus meets the requirements of 5A409.

8. On the basis of the above, the applicant has given evidence in accordance with the applicable Schedule 5A requirements and therefore satisfies cl.572.223(2)(a).

9. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   DECISION

10. 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) of Schedule 2 to the Regulations.

    Karen Synon

    
    

    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.

Division 3 - Requirements for assessment level 3 [LEGEND note: clause 5A407 - clause 5A409]

Clause 5A407      English language proficiency

[5A407]      The applicant must give evidence that one of the following applies:

(a)      the applicant:

(i)      will not undertake an ELICOS before commencing his or her principal course; and

(ii)      achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5;

(b)      the applicant:

(i)      will undertake an ELICOS of no more than 30 weeks duration before commencing his or her principal course; and

(ii)      achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 4.5;

(c)      the applicant:

(i)      is fully funded; and

(ii)      has a level of English language proficiency that satisfies his or her proposed education provider; and

(iii)      if the applicant is to undertake an ELICOS before commencing his or her principal course — will undertake an ELICOS of no more than 30 weeks duration;

(d)      the applicant had, less than 2 years before the date of the application:

(i)      successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted:

(A)      in Australia; and

(B)      in English; or

(ii)      successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that:

(A)      is specified by the Minister in an instrument in writing for this sub-subparagraph; and

(B)      was conducted outside Australia; and

(C)      was conducted in English; or

(iii)      as the holder of a student visa — successfully completed a substantial part of a course (other than a foundation course) that:

(A)      was conducted in English; and

(B)      was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

(iv)      successfully completed a substantial part of a course that:

(A)      is specified by the Minister in an instrument in writing for this sub-subparagraph; and

(B)      was conducted outside Australia; and

(C)      was conducted in English; and

(D)      was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

(v)      successfully completed a foundation course that was conducted:

(A)      in Australia; and

(B)      in English; or

(vi)      successfully completed a course in foundation studies that:

(A)      is specified by the Minister in an instrument in writing for this sub-subparagraph; and

(B)      was conducted outside Australia; and

(C)      was conducted in English;

(e)      the applicant achieved, less than 2 years before the date of the application, the required score in a test that is specified in a legislative instrument made by the Minister under clause 5A102;

[(e) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(5) - LEGEND note]

(f)      the applicant has:

(i)      a level of English language proficiency that satisfies the applicant’s proposed education provider; and

(ii)      at least 5 years of study in English undertaken in 1 or more of the following countries:

(A)      Australia;

(B)      Canada;

(C)      New Zealand;

(D)      South Africa;

(E)      the Republic of Ireland;

(F)      the United Kingdom;

(G)      the United States of America.

Clause 5A408      Financial capacity

[5A408] (1)      The applicant must give, in accordance with this clause:

[(1) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]

(a)      evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 12 months:

(i)      course fees;

(ii)      living costs;

(iii)      school costs; and

(aa)      a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 12 months; and

(b)      evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and

(c)      evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.

[5A408] (1A)      If the applicant is:

(a)      fully funded; or

(b)      an applicant:

(i)      who is not funded, wholly or partly, by:

(A)      the Commonwealth Government, or the government of a State or Territory; or

(B)      the government of a foreign country; or

(C)      a multilateral agency; and

(ii)      who proposes to undertake a course of study that is, or courses of study that are together, of a duration of less than 12 months; and

(iii)      for whom, if applying in Australia, the proposed period of stay will result in the applicant’s total period of lawful stay in Australia being less than 12 months; or

(c)      the subject of an arrangement by which the course fees, living costs and travel costs for the primary person’s full period, assessed for the primary person alone, will be met by:

(i)      a provincial or state government in a JD_legend_current_mrPop06841foreign country, with the written support of the government of that country; or

(ii)      an organisation specified in a legislative instrument made by the Minister for this paragraph;

[(ii) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(5) - LEGEND note]

the applicant must give evidence that the applicant has access to funds that are sufficient to support each member of the applicant’s family unit who is not a family applicant.

[5A408] (2)      In this clause:

financial support, from an applicant’s proposed education provider, means:

(a)      a scholarship that:

(i)      is awarded on the basis of merit and an open selection process; and

(ii)      is awarded to a student who is enrolled in a course leading to a Certificate IV qualification or a higher qualification; and

(iii)      is awarded to the greater of:

(A)      not more than 10% of overseas students in a course intake; and

(B)      not more than 3 overseas students in a course intake; or

(b)      a waiver of the applicant’s course fees carried out in the following circumstances:

(i)      the applicant is part of an exchange program that involves:

(A)      a formal agreement between an education provider and an education institution in a foreign country; and

(B)      the reciprocal waiver of course fees as part of that agreement;

(ii)      the applicant proposes to study full-time;

(ii)      the applicant’s proposed studies will be credited to a course undertaken by the applicant in the applicant’s home country.

funds from an acceptable source means one or more of the following:

[(a) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]

(a)      if the applicant:

(i)      has successfully completed at least 75% of the requirements for his or her principal course; and

(ii)      has applied for the visa in order to complete the course; and

(iii)      does not propose to undertake any further course;

a money deposit held by an acceptable individual;

[(aa) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]

(aa)      if paragraph (a) does not apply — a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application;

[(b) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]

(b)      a loan from a financial institution made to, and held in the name of, an acceptable individual;

(c)      a loan from the government of the applicant's home country;

(d)      financial support from:

(i)      the applicant's proposed education provider; or

(ii)      the Commonwealth Government, or the government of a State or Territory; or

(iii)      the government of a foreign country; or

(iv)      a corporation that:

(A)      conducts commercial activities outside the country in which it is based; and

(B)      employs the applicant in a role in relation to which the applicant's principal course is of direct relevance; or

(v)      a multilateral agency; or

(vi)      a provincial or state government in a foreign country, provided with the written support of the government of that country; or

(vii)      an organisation specified by the Minister in an instrument in writing for this subparagraph; or

(viii)      an acceptable non-profit organisation.

Clause 5A409      Other requirements

[5A409]      The applicant must give evidence:

(a)      that he or she has successfully completed secondary schooling to the year 11 level (or its equivalent); and

(b)      that:

(i)      he or she is enrolled in a vocational education and training course; or

(ii)      he or she is enrolled in a course that is a pre-requisite to a vocational education and training course and a vocational education and training course; or

(iii)      he or she is enrolled in a course that is a pre-requisite to a vocational education and training course and has an offer of a place in a vocational education and training course.