1420184 (Migration)

[2015] AATA 3029

1420184 (Migration) [2015] AATA 3029 (8 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jenny Carolina Navas Jaime
Mr Eduardo Andres Velasquez Garcia

CASE NUMBER:  1420184

DIBP REFERENCE(S):  BCC2014/2363305

MEMBER:Chris Keher

DATE:8 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

·cl.573.223(2)(a) of Schedule 2 to the Regulations.

And the second named applicant meets the following criteria:

·cl.573.322 of Schedule 2 to the Regulations.

Statement made on 08 July 2015 at 5:09pm

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 21 November 2014 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 18 September 2014. At the time of lodgement, Class TU contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. In the present case, the delegate assessed the first named applicant (the applicant) against the criteria for a Subclass 573 visa on the basis of enrolment in an Associate Degree in Business. The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.573.223 of Schedule 2 to the Regulations.

4. The applicants appeared before the Tribunal on 14 April 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The requirements of cl.573.223 differ depending upon whether or not the applicant is, and was at the time of application, an ‘eligible higher degree student’ who has a confirmation of enrolment (COE) in each course of study for which they are such a student. ‘Eligible higher degree student’ is defined in cl.573.111 to mean an applicant for a Subclass 573 visa who is enrolled in a bachelor’s degree or a masters degree by coursework or for visa applications made on or after 23 November 2014 an advanced diploma in the higher education sector, and any preliminary course, with an eligible education provider or, in some cases, an educational business partner. Eligible education providers, and educational business partners, are those specified by the Minister in an instrument.

7. On the evidence before the Tribunal, the applicant in this case is not an eligible higher degree student with a corresponding COE and cl.573.223(1A) does not apply.  As such, to meet cl.573.223, the applicant 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?

8. 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’ are 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.

9. In this case, the applicant holds a passport of Colombia.  The assessment level for a holder of such a passport for Subclass 573 (the subclass for the applicant’s principal course) is assessment level 2: IMMI 14/014.  The applicant is also proposing to undertake a Diploma in Human Resources Management, 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.

10. The evidentiary requirements for this assessment level for Subclass 573 are set out in Part 5 of Schedule 5A and are extracted in the attachment to this decision.

11. The applicants are Mrs Jenny Carolina Navas Jaime (the applicant) and her husband Mr Eduardo Andres Velasquez Garcia. They married in Australia on 5 April 2013. They are citizens of Colombia. The applicant arrived in Australia on 17 November 2012 on a student visa (570) to cease 24 June 2013. She was then granted a further 570 visa to cease 18 September 2014. She has a secondary certificate from Colombia issued in 2005. 

12. The applicant provided a copy of the delegate’s decision with her application for review. This details in particular that, despite being requested to provide evidence of meeting the English language requirements of Schedule 5A, the applicant did not provide such evidence and her agent on 21 November 2014 contacted the department and confirmed the applicant “will not be able to provide the documents and would therefore like her application refused”.

13. The applicant applied for the visa to undertake a Certificate IV in Business, a Diploma in Human Resources Management and an Associate Degree in Business.

14. She has completed the Certificate IV in Business; however this was whilst she held a bridging visa. She also previously completed General English courses whilst she held the 570 visas.

15. Prior to hearing the Tribunal entered into correspondence with the applicant (letter dated 10 April 2015) providing a copy of Schedule 5A requirements and in particular noting that the financial documents she had provided were not from an acceptable individual as defined in the regulations, and the Certificate IV she has completed did not meet the English language requirements as she didn’t complete it whilst the holder of s a student visa. She was advised on a tentative basis, that she was as a minimum required to evidence financial capacity in the amount of $34,123.

16. At hearing the applicant said that she was told by her agent she didn’t need to obtain an IELTS result and this was why she didn’t sit a test. She said she had been told that doing the Certificate IV would suffice. It was explained to her that, as already detailed in the above letter, she didn’t complete it whilst she held a student visa but a bridging visa. Schedule 5A was explained in part, and it was noted that one way she could meet the English language proficiency requirement was an IELTS of 5.5. The applicant said she was pregnant and her child was due in about 4 weeks (mid-May) and she was going through a stressful time. She said that she intended to remain in Australia to study, and wasn’t using the student visa program to remain in Australia indefinitely. Mr Garcia said his wife’s studies are intended to prepare her to then take over her father’s business.

17. The Tribunal explained that the current assessment level she needed to meet was level 3 and this had more stringent requirements than what had been applied to her previously for a 570 visa. This was why her aunt is no longer considered as an acceptable individual.

18. The Tribunal asked how she was going to study and care for a child. The applicant explained the college (Australian Institute of Professional Education) had said they would give her additional time and one option was that she undertakes studies online.

19. The applicants requested additional time to provide evidence of meeting the above English and financial capacity requirements. This was granted to 14 June 2015.

20. At the time of hearing the relevant Confirmation of Enrolments (CoE) were for a Diploma in Human Resources Management (6AAD4A23) from 11 May 2015 to 8 June 2016 and an Associate Degree in Business (6AAD6A84) from 4 July 2016 to 1 July 2018.

21. PRISMS record the above CoE as cancelled and in their place: Diploma in Human Resources Management (72627B36) from 28 September 2015 to 25 September 2016 and an Associate Degree in Business (72628770) from 31 October 2016 to 28 October 2018.

22. The applicant has also now, post hearing provided the following:

    ·     An IELTS result with an overall band score of 5.0 dated 11 June 2015;

    ·     A CoE for a General English course from 27 July 2015 to 18 September 2015, course fees $1720, fully paid.

    ·     A letter from the applicant’s brother, Daniel, dated 12 June 2015 to the effect that he now financially supports her and her husband. He has in evidence of this provided a copy of a Bancolombia account statement dated 11 June 2015 with a balance of P67,287,893; and prior 3 months statements showing similar balances.   With a minimum balance of P65,008,056. He later provided a further statement with a balance of P77,296,460. The lowest balance is about equivalent to about AUD$33,500.

23. English language proficiency. The applicant has an IELTS with an overall band score of 5.0 dated 11 June 2015; she is now enrolled in a General English course to be done prior to undertaking her principal course. This meets the requirements of 5A407(b)(i) and (ii).

24. Financial capacity. The applicant has provided a declaration as to access to funds with her original application. She is now supported by her brother. Other family members have also provided documents of financial support but they do not meet the definition of an acceptable individual. I am prepared to accept as true that he supports her. 

25. The course fees for the General English course from 27 July 2015 to 18 September 2015, are $1720, fully paid;  Diploma in Human Resources Management (72627B36) from 28 September 2015 to 25 September 2016 are $6000, nil paid; and an Associate Degree in Business (72628770) from 31 October 2016 to 28 October 2018, are $23,120, $1445 paid.

26. The relevant period in question is “the first 12 months”. I accept this is true and that this leaves in the first 12 months approximately $3,000 owing for fees. Living costs for the applicant are detailed in the Ministers determination to be $18610 per annum. Plus 35% for the husband is $6513. Plus 20% for their child, or $3722. Travel costs are estimated by me to be $1600 in total. The total of funds required to be evidenced I find to be $3000+$18610 + $6513+$3722 +$1600 = $33,445. I accept that the applicant has sufficient funds from an “acceptable source” for the period of study of the proposed course. I accept the applicant’s brother is an “acceptable source”.  I accept the applicant has access to the above funds. I also accept she has sufficient funds for course fees, living costs and travel costs. This meets the requirements of Clause 5A408.

27. Other requirements. The applicant has successfully completed secondary schooling to the year 11 level (or its equivalent); and she is enrolled in a vocational education and training course. This meets the requirements of Clause 5A409.

28. On the basis of the above, the applicant has given evidence in accordance with the applicable Schedule 5A requirements and therefore satisfies cl.573.223(2)(a).

29. In relation to the secondary applicant, he is the husband of the applicant. They married in Australia, reside together and now have a child. I am satisfied he meets the secondary criteria.

30. 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

31. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

    ·cl.573.223(2)(a)

    And the second named applicant meets the following criteria:

    ·     cl.573.322 of Schedule 2 to the Regulations.

    Chris Keher

    
    

    Senior Member

    ATTACHMENT – Extracts from the Migration Regulations 1994

    573.223(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 (1A) or (2).

    (1A)If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

    (a)the applicant gives the Minister evidence that the applicant has:

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

    (ii)educational qualifications required by the eligible education provider; 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 sufficient funds to meet:

    (i)the costs and expenses required to support the applicant during the proposed stay in Australia; and

    (ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.

    (2)If subclause 573.223(1A) does not apply:

    (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.