1500307 (Migration)

[2015] AATA 3880

1500307 (Migration) [2015] AATA 3880 (11 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sumaira Amir
Mr Syed Bilal Ahmad

CASE NUMBER:  1500307

DIBP REFERENCE(S):  BCC2014/2744608

MEMBER:Adrian Ho

DATE:11 December 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.573.223(2)(a) of Schedule 2 to the Regulations; and

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

Statement made on 11 December 2015 at 4:17pm

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 19 December 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 16 October 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 573 visa on the basis of enrolment in a associate degree course. The visa was refused because the applicant did not provide evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant, in particular, evidence as the financial capacity (f.1), as required by cl.573.223(2)(a) of Schedule 2 to the Regulations, and also because the delegate was not satisfied the applicant would have access to the funds shown.

4. The applicants appeared before the Tribunal on 2 December 2015 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent.

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

7. Where used in this decision:

   a.The applicant refers to the first-named applicant;

   b.COE refers to Certificate of Enrolment;

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

   d.VET refers to Vocational Education and Training;

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

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

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Having regard to the applicant’s current proposed course of study, an associate degree, the relevant subclass in this case is Subclass 573.

9. To meet cl.573.223(2)(a), 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.

   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 Pakistan.  The assessment level for a holder of such a passport for Subclass 573 (the subclass for the applicant’s principal course) is assessment level 3, which is also the highest assessment level for the applicant.

12. The evidentiary requirements for this assessment level for Subclass 573 are set out in Part 5 of Schedule 5A.

    English language proficiency

13. The applicant has provided her Certificate IV in Hospitality which on the evidence she completed in November 2012 (f.37) which was less than two years before she applied for this visa. She has given evidence in accordance with Schedule 5A507(d)(iii).

    Financial capacity

14. The loan document provided is from the Habib Bank in Pakistan and is in the name of the applicant’s husband, the secondary visa applicant, in the amount of 4.75m PKR.  He is an acceptable individual.

15. On the evidence, the loan is secured by funds which were the proceeds of his mother having sold two shop buildings in Pakistan and then depositing in his account the portion of the proceeds it is claimed that belong to him as a family member.

16. It is unnecessary to decide if that is so or not.  The tribunal must decide if the second visa applicant’s regular income is sufficient to have accumulated the funds being shown.

17. The tribunal finds that taking into account living costs for the first 12 months, outstanding course fees apportioned for the first 12 months and fees already paid, and return travel costs, the applicant must provide evidence of having AUD 35500 in funds, or around 2.6 million Pakistan Rupees. 

18. The funds available under the loan exceed the amount of funds that must be shown.

19. The tribunal notes that where the source of funds is a bank loan it is written Department policy that it is generally unnecessary to verify regular income:

    57.2     Bank loans and income stream

    To be satisfied that the regular income of an individual (including the applicant) is sufficient to have genuinely obtained a loan for AL 2 and 3 applicants, officers should be satisfied that the individual has the regular income to meet the repayment terms of the loan.

    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. However, should there be:

    •          any doubts as to the bona fides of the evidence provided by the applicant or the individual providing the funds or

    •          doubt as to the person’s capacity to maintain access to these funds by maintaining the loan

    officers should verify that the regular income stream of the individual is sufficient to meet the repayment terms of the loan. If necessary, they may verify the terms of the loan with the relevant financial institution.

20. The reason for this policy is that the bank, having extended the loan, is presumed to be satisfied that it can be repaid.

21. The second visa applicant claims to be a taxi driver in Australia who has earned around $33000 a year.  The applicant herself earns around $40000 a year as a cook.  They have provided financial and tax documents not given to the delegate and the tribunal accepts that their Australian income is as stated.

22. Policy notes that it may be appropriate to ask if the loan-holder can service loan repayments.

23. On the evidence, there is no interest or loan repayments attaching to the loan as it is secured by more funds than are subject to the loan.  However, should a loan of AUD 35500 have been subject to an average Pakistani interest rate of 12% pa[1] the tribunal finds that the second applicant’s income is sufficient to service the interest and principal on such a loan.  This is part so because the primary applicant, while her income is not directly relevant here, has an income which can cover other living and household expenses.

    [1] >

    The applicant has given evidence in accordance with Schedule 5A Item 5A508.

    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 5A509.

25. 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).

    Access to funds

26. As the tribunal has found that the applicants can service a loan of the size being relied upon, the tribunal also finds that the loan can be maintained and therefore that the applicant will have access to those funds and meets cl.573.223(2)(c).

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

28. The tribunal has not considered the criteria in cl.573.223(2)(b) or cl.573.223(1)(a).

    DECISION

29. 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 573 Higher Education Sector visa:

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

    ·cl.573.223(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.