1500173 (Migration)

[2015] AATA 3633

1500173 (Migration) [2015] AATA 3633 (11 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs NISHA RANI
Mr DEVINDER SINGH

CASE NUMBER:  1500173

DIBP REFERENCE(S):  BCC2014/2423017

MEMBER:Adrian Ho

DATE:11 November 2015

PLACE OF DECISION:  Melbourne

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 572 Vocational Education and Training visa:

• cl.572.223(2)(a) of Schedule 2 to the Regulations; and

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

Statement made on 12 November 2015 at 5:46pm

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

2. Where used in this decision:

   a.COE refers to Certificate of Enrolment;

   b.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   c.VET refers to Vocational Education and Training;

   d.ELICOS refers to English Language Intensive Courses for Overseas Students;

   e.A reference such as ‘5Axxx’ refers to the corresponding item or clause of Schedule 5A to the Migration Regulations;

   f.The Department or Immigration refers to the Department of Immigration and Border Protection; and

   g.IELTS refers to the International English Language Testing System.

3. The applicants applied for the visas on 24 September 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).

4. In the present case, the delegate assessed the first named applicant (the applicant) against the criteria for a Subclass 572 visa on the basis of enrolment in a VET sector course. 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.

5. The applicants appeared before the Tribunal on 10 November 2015 to give evidence and present arguments.

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 is enrolled in a VET sector course as her 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 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?

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 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.  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.

    Regular Income

12. The applicant provided evidence that her father had 1.6 million INR on fixed deposit for the purposes of satisfying cl.572.223(2)(a), which he has since used to support a loan in similar amount.

13. She claims these funds were the proceeds of her father selling produce from the family farm.

14. The tribunal calculates that the amount of funds she needs to show is below this figure: at 1063000 INR.

15. During the pre-hearing review process the tribunal pointed out to her that the Department, in its decision, a copy of which she provided to the tribunal, was not satisfied that she would have access to the funds shown nor that the regular income of her father is sufficient to accumulate the level of funds shown.  She was invited to consider providing further evidence in this regard.

16. She provided income tax return documents for the year 2014-2015 for her father showing a total income of 198400 INR.  She provided a computation of her father’s income for 2015-2016 showing a total income of 265600 INR, which includes a business profit of 175600 INR out of gross receipts of 475600 INR.

17. The funds that she has shown, she claims are from the sale of timber or timber pulp and she provides receipts from a commission agent (Vikrant Timbers) in August, September and October of 2014 for the sale of produce amounting to over 1.7m INR (f.110).

18. She also provides five other receipts from commission agents for sales showing much smaller sums of around 35610, 28141, 38330 INR in 2014 and 16807 and 203788 INR in 2015 (from f.111).

19. It was noted to the applicant that the sales to Vikrant Timbers amounting to over 1.7m INR in turnover were only a turnover figure and they all occurred within the 2014-2015 tax year and the profit from those sales have logically been incorporated in the full year income figure of 198400 INR.

20. Taking the lower annual income figure of 198400 INR for the 2014-2015 tax year, which is the most recently full-year figure provided, the tribunal considers that it would take something more than 5 years for the applicant’s father to accumulate the level of funding that must be shown: 1063000 INR.

21. The tribunal has concerns that numerous years of savings would be placed with a commission agent, rather than in a bank account.  However, the tribunal is prepared to accept as plausible that the applicant’s father’s regular income is sufficient to accumulate 1063000 INR over some years.

    English language proficiency

22. The applicant has provided an IELTS test report showing an Overall Band Score of 5.5. 

23. The applicant has given evidence in accordance with Schedule 5A407.

    Other matters

24. Based on secondary school documents and Australia Certificate of Enrolment documents provided, the tribunal finds the applicant given evidence in accordance with Schedule 5A Item 5A409.

25. 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).

    Access to funds

26. The doubts regarding the question of access lie in the notion that because the applicant’s father’s saving cannot be tracked over time, for example, through successive bank documents, there is a suggestion left in the evidence that the funds that have been shown have been borrowed from commission agents or “Artiyas” and will be returned to the lender once the visa is granted; in which case, they are not in fact accessible by the applicant.

27. The applicant has only given evidence of one inward transfer of money from her father.  The tribunal spent a considerable amount of time at hearing calculating the couple’s living and study expenses since 2008 and accepts that they both make around $16000 a year from their work in Australia.  The tribunal accepts that living frugally they have spent something more than $80000 on living costs since coming to Australia and course fees have been around $50000.  The tribunal accepts that the money earned in Australia is largely sufficient to cover expenditure in Australia, and therefore accepts there is no real need for remittances from India.  The absence of remittances therefore does not suggest that the applicant does not have access to the funds in India.

28. Based on the income tax documents that were not provided to the delegate, the tribunal has accepted that the applicant’s father’s income is sufficient to accumulate the level of funding that is required to be shown.  For that reason, in this particular case, it is plausible that funds up to 1063000 INR are in fact own by the acceptable individual and not borrowed from a third party such as an Artiya. 

29. The tribunal therefore accepts that the applicant will have access to the relevant funds and meets cl.572.223(2)(c), even though there is every indication that she will not need to access those funds.

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.

    Genuine temporary entrant

31. The applicant has a good study completion record but a long history of study in the VET sector.  The tribunal considers that she is approaching the outer limit of genuine study in the VET sector where that study will not detract from a conclusion that she has an intention to stay in Australia temporarily.  Her stated intention is to open and run her own restaurant in Australia or in India.  The tribunal considers that she has studied enough courses, and has sufficient acumen, to embark on that enterprise.  She says she wishes to move on to bachelor’s level study after the current proposed course.  The tribunal doubts that she reasonably requires bachelor level study or qualifications in order to open her own restaurant business.

    DECISION

32. 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 572 Vocational Education and Training visa:

    ·cl.572.223(2)(a) of Schedule 2 to the Regulations; and

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

    Adrian Ho

    
    

    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.