1421183 (Migration)

[2015] AATA 3208

1421183 (Migration) [2015] AATA 3208 (29 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Cesar Augusto Amaya Duran

CASE NUMBER:  1421183

DIBP REFERENCE(S):  BCC2014/2045942

MEMBER:Gabrielle Cullen

DATE:29 July 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) of Schedule 2 to the Regulations.

Statement made on 29 July 2015 at 2:29pm

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 5 December 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 19 August 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. The visa was refused because the applicant did not provide evidence to demonstrate that he met the Schedule 5A financial capacity requirements for the purposes of cl.572.223(2)(a) of Schedule 2 to the Regulations

   CLAIMS AND EVIDENCE

4. The applicant submitted the delegate’s decision with his review application. The delegate found that the applying was relying on his aunt for financial support who was not an acceptable individual for these purposes. The applicant’s aunt was not an Australian citizen or a permanent resident of Australia or an eligible New Zealand citizen residing in Australia.   

5. The Tribunal wrote to the applicant on 23 March 2015 inviting him to a hearing on 29 April 2015. He was asked to provide evidence that he met the requirements for the visa including the financial capacity requirements. The applicant did not provide any of the information requested before the hearing. He attended the hearing with Ms Martha Almeyda who stated that she and the applicant were not related but he was like a son to her and she was supporting him to study in Australia. The Tribunal commented that the arrangement they were describing did not satisfy the financial capacity requirements because only certain specified persons are acceptable individuals for the financial capacity requirements.

6. The applicant submitted a written statement in which he stated that he understood the basis of the delegate’s decision but he had been misinformed by an education agent. He stated that he and his mother had $19,577 which he could use for his study costs in Australia. The applicant submitted a Commonwealth Bank statement dated 29 April 2015 which indicated that on that date he had $14,234 in savings; another statement was submitted indicating that as at 13 August 2014 he held $3,123 in his Commonwealth Bank account, documents relating to his mother’s savings in Colombia, indicating that on 28 April 2015 she had 10,100,000 COP, a letter from the applicant’s mother stating that she was supporting him to study in Australia; other documents relating to the applicant’s mother and her relationship with the applicant; a letter indicating that the applicant was doing a Diploma of Marketing which commenced on 27 September 2014 and was scheduled to end on 27 September 2015 and he had enrolment in an Advance Diploma of Marketing which commenced on 28 September 2015 and was scheduled to end on 24 September 2016; documents relating to the applicant’s employment in Australia; and copies of his enrolment certificates indicating that his two courses cost $6,000 each. The applicant stated that he had paid $4,500 towards his current course and in the next twelve months he will have to pay a further $4,000 towards his next course.

7. The Tribunal commented that it required receipts from the applicant’s course provider so it could calculate his financial capacity requirements. It commented however, that on the information provided he will require $18,610 for his living costs during the first 12 months of visa; $6,500 for his course fees; and $1,350 for his travel costs at the end of his stay in Australia (airfare obtained from The Tribunal commented that the applicant had to have access to $26,460 which had to be available to him from 19 May 2014 (that is 3 months before the application was lodged) or alternatively he required a loan held by an acceptable individual for his study costs in Australia.

8. Ms Almeyda asked if she could take out a loan in her name and give the applicant the money. The Tribunal discussed with the applicant the type of situations which would be meet the requirements. It commented that Ms Almeyda’s proposal would not meet the requirements.

9. The Tribunal received a submission from the applicant on 28 May 2015. He submitted a document from Bancolombia, dated 20 May 2015, indicating that a loan had been “pre-approved” in his sister’s name. He stated that loans in Colombia take several months to be approved because of stringent anti-fraud measures which must be observed. He stated that the outcome of the application should be known by the end of July 2015 or possibly earlier.

10. On 3 July 2015 the Tribunal received the following

    ·A loan in the sum of $40,000,000 COP in the names of Nohora Jerez Ortiz and Silvia Duran Faviola.

    ·Birth certificate and documents from the Republic of Columbia indicating that Silvia Duran Faviola is the sister of the applicant.

11. Evidence was submitted from the applicant’s education provider indicating that as at 3 July 2015 the applicant only owes $6000 of fees for the Advanced Diploma of Marketing. Evidence from 28 July 2015 indicates the applicant has paid $3000 towards the Advanced Diploma of Marketing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. In the present case, as the applicant currently is currently enrolled in a Diploma of Marketing leading to an Advanced Diploma of Marketing 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.

13. 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?

14. 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.

15. In this case, the applicant holds a passport of Columbia. 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. 

    English language proficiency – clause 5A407

16. As the evidence indicates the applicant achieved a score of 6.0 in an IELTS test taken on 19 July 2014, the Tribunal is satisfied that less than two years before the date of the application the applicant achieved in an IELTS test an overall band score of at least 5.5. The applicant therefore meets clause 5A407(a) and therefore clause 5A407. He therefore satisfies the English language requirement.

    Other requirements - Clause 5A409

17. Clause 5A409 requires that he provide evidence that he has successfully completed secondary schooling to the year 12 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 of Marketing, the Tribunal finds he meets clause 5A409.

    Financial capacity requirements - clause 5A408

18. 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’

19. 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.

20. In this case the first 12 months begins on the expected date of visa grant, which is approximately 24 August 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.

21. The applicant’s principal course, the Advanced Diploma of Marketing has a proposed end date of 24 September 2016. This is a period of 14 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

22. ‘Course fees’ are defined in Clause 5A101. The applicant’s CoE states that the total course fees for the Diploma of Marketing and Advanced Diploma of Marketing are $12,000. The Tribunal considers it appropriate to deduct from the total course fees, any amounts the applicant has already paid. The CoE and a receipt from his school  indicates the applciant has already paid $6000 towards the Diploma of Marketing and $3000 towards the Advanced Diploma of Marketing.

23. The Tribunal therefore finds the applicant’s course fees that he still owes for the remaining period is $3000.

    Living costs

24. ‘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

25. ‘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.

26. The applicant’s home country is Columbia. The cost for one economy one way ticket from Sydney to Columbia varies but is approximately $1,350.

    Total costs

27. In accordance with clause 5A408, the Tribunal finds that the applicant’s total course fees, living costs and travel costs for the first 24 months are as follows:

    Course fees                      $ 3 000

    Living costs for 10 months  $ 18 610

    Travel costs  $ 1 350

    Total  $ 22 960

28. The applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $22 960.

    Funds from an acceptable source

29. ‘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 brother of Silvia Faviola, the person named in the loans. The Tribunal accepts the applicant’s sister is an acceptable individual.

30. ‘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. 

31. 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 sister is an individual who is providing support to the applicant.

32. The applicant has provided evidence of a loan totalling $40,000,000 COP, or $19,842A ( He has also provided evidence of a funds in the Commonwelath Bank of Australia in his name, held  three months before the date of the application in the sum of $3,123A.  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 toegther with evidence of funds in his own name held three months before the date of application. The applicant has demonstrated that he has funds from an acceptable source in accordance with cl.5A408(2)

33. 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).

34. 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). 

35. 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.5A408(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 that the applicant sister has a regular income to accumulate to the level of funding being provided to the applicant.

36. 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).

37. In this case cl.5A408(1A) does not apply to the applicant.

38. 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

39. 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).

    CONCLUSIONS

40. As the Tribunal has found the applicant meets the requirements of cl.572.223(2)(a)  it will remit the matter to the delegate for reconsideration.

    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) 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.