1414990 (Migration)

[2016] AATA 3078

1414990 (Migration) [2016] AATA 3078 (8 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rohit Arora

CASE NUMBER:  1414990

DIBP REFERENCE(S):  BCC2014/1694546

MEMBER:Karen Synon

DATE:8 January 2016

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 08 January 2016 at 1:39pm

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 15 August 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 10 July 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 Diploma of Management.  The visa was refused because the applicant did not provide the evidence required to demonstrate they were 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 4 September 2014 and provided a copy of the department’s decision to the Tribunal.

5. This matter was originally constituted to Member Moore who held a hearing in relation to the issues arising on the review on 19 March 2015.  Additional documents were requested by Member Moore, some of which were provided to the Tribunal following the hearing.  When Member Moore was no longer available to determine the case it was reconstituted to Member Synon who has finalised the matter.  The applicant appeared before the Tribunal for a second time on 7 January 2016 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent who was present at the first hearing but not the second hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In the present case, as the applicant currently is enrolled in a Diploma of Business and an Advanced Diploma of Business (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.

9. 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 or she 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?

10. 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.

11. 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: IMMI 14/014.  The applicant is also proposing to undertake a Diploma of Business which is not an ELICOS, which has an assessment level of 3 specified for the applicant’s passport: IMMI 14/014.  In this case, the highest assessment level to which the applicant is subject is assessment level 3.

12. 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

13. The applicant has provided results of an IELTS test he sat on 24 May 2014 in which he received an Overall Band Score Result of 5.5 (@ folio 20).  He therefore meets 5A407(e) and consequently the English language proficiency requirements of Schedule 5A.

    Financial Capacity Requirements

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

15. Based on the Certificate of Enrolment (CoE) provided by the applicant he will complete his study on 2 October 2016 and hence has approximately 9 months before completing his course.  The Tribunal therefore considers 10 months as the appropriate period for the calculation of the living costs, based on the day the student visa is likely to be granted.

16. The living costs are thus calculated as $15,508.

17. The Confirmation of Enrolment records the total course costs as $6,250.  Evidence has been provided that of this $2,250 has been paid.  Therefore the outstanding course costs are calculated as $4,000.

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

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

Course fees	$4,000
Living costs	$15,508
Travel costs	$1,000
TOTAL	$20,508

1. During the first 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 10 April 2014.  He was also advised that the Tribunal must be satisfied about the accumulation funds in relation to these funds.  The applicant gave evidence that his father is a builder and his mother runs a steel factory.  At the second hearing these requirements were reiterated and the applicant gave evidence that his grandfather is retired from his position as a head carpenter on the state railways.

2. On 26 November 2015 the Tribunal wrote to the applicant, via his registered migration agent, in the following terms:

   Please be advised that the Tribunal has considered the financial evidence the applicant provided both before and after the hearing however, because the applicant is now proposing to undertake 2 further courses which he will not finish until October 2016, the financial evidence before the Tribunal is not sufficient for it to be satisfied on the Schedule 5A financial capacity requirements.

   The applicant is therefore invited to provide the following current information:

   ·A statement from his education provider of all outstanding fees that will be due over the 12 months in relation to his Diploma of Business and Advanced Diploma of Business and copies of any receipts for fees paid to date;

   ·Evidence of financial capacity for the total of 12 months living costs ($18,610) and travel costs ($1,000) and the balance of any course fees;

   ·Evidence that the full amount of these funds were available from 3 months before the visa application date; that is from 10 April 2014;

   ·If evidence is provided by way of a money deposit, then evidence is  required as to how these funds were accumulated; and

   ·If a money deposit is provided then evidence is required that it comes from an acceptable individual being:

   a)       the applicant

   b)       the applicant’s spouse or de facto partner;

   c)       a parent of the applicant;

   d)       a grandparent of the applicant;

   e)       a brother or sister of the applicant;

   f)        an uncle or aunt of the applicant who is:

   I.an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   II.usually resident in Australia.

   If this information is provided to the Tribunal’s satisfaction then a decision will be made without the need for a further hearing.  If the information is not provided or is not satisfactory in all respects then a second hearing will be scheduled for the week commencing 4 January 2016.  The Tribunal asks that this information be provided at the applicant’s earliest convenience and no later than Monday 7 December so that a hearing can be scheduled if necessary.

3. In response the following documents were provided on 9 December 2015:

   ·     A statement from ALTEC Education Centre dated 8 December 2015 recording an outstanding balance of $4000 in relation to the applicant’s study;

   ·     A receipt for $500 from Pass Global Pty Ltd trading as Australian Learning Training and Education Centre for $500 paid on 3 September 2015; and

   ·     A statement from the State Bank of Patiala dated 23 March 2013 certifying that Mr Jagdish Chander has 8 term deposits (4 of which were deposited on 22 April 2013 and 4 deposited on 2 June 2014) totalling Sixteen Lakhs, 300,300, 32 INR.  The renewal date of four of these special term deposits is 29 October 2014.

4. Following the second hearing and at the Tribunal’s request, the applicant provided an updated statement from the State Bank of Patiaia and evidence of his relationship to his grandfather.

5. Based on the evidence provided from the State Bank of Patiaia the Tribunal is satisfied that the applicant has demonstrated financial capacity from an acceptable source, being money deposits held by his grandfather, who is an acceptable individual.  The Tribunal is further satisfied that his grandfather has demonstrated the accumulation of these funds.

6. In relation to the required demonstration of $20,508 the Tribunal notes that the certification from the State Bank of Patiaia provided after the hearing and dated 16 December 2015 relevantly records term deposits of 1,153,3332 INR which, at today’s exchange rate,[1] equates to $24,494.25 which is in excess of the $20,508 required.  Evidence of additional terms deposits in the same account amounting to 275,280 INR were deposited on 2 June 2015 and therefore have not been included in this calculation.

   [1] <>

   While further evidence of financial capacity is not required the Tribunal notes that additional evidence of fixed term deposits held by the applicant’s father with the Punjab National Bank totalling 1,155,079.00 INR[2] were also provided however not all of these deposits were made at the specified period before the visa application lodgement.

   [2] Equivalent to AUD $24,522.54 at 8 January 2015 <>

   In summary the applicant has provided evidence, to the Tribunal’s satisfaction, of funds from an acceptable source in excess of $20,508.  The acceptable source are money deposits with the State Bank of Patiala held by the applicant’s grandfather.  The applicant has also provided evidence of his relationship to his grandfather, 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 deposits from the applicant’s grandfather’s government pension and savings.  Evidence of his savings history with the State Bank of Patiala has also been provided.

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

   Other Requirements

8. 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.

9. 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).

10. 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

11. 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 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.