1500857 (Migration)
[2016] AATA 3851
•29 April 2016
1500857 (Migration) [2016] AATA 3851 (29 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Ms Haitao LUO
CASE NUMBER: 1500857
DIBP REFERENCE(S): BCC2014/3068328
MEMBER:Mary-Ann Cooper
DATE:29 April 2016
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application 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.
Statement made on 29 April 2016 at 4:09pm
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 January 2015 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 17 November 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).
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 Certificate IV in Commercial Cookery and a Diploma of Hospitality. The visa was refused because the applicant did not provide the evidence required to demonstrate she was a genuine student as required by cl.572.223 of Schedule 2 to the Regulations.
The applicant appeared before the Tribunal on 25 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Jurisdiction
The Tribunal observes that the applicant’s visa application also included her husband as a migrating dependent. This review application does not include her husband and a later review application made by him in respect of this decision has been refused as it was lodged outside the required time limits (AAT matter 160812).
On 6 April 2016 the Tribunal wrote to the applicant inviting her to respond or comment to its preliminary view that, as her husband had not been included in the review application, it had no jurisdiction to review the delegate’s decision as it related to him. The applicant’s husband responded, explaining that the failure to include him had been the fault of their then agent. He further outlined the difficulties he and his wife have and will experience if he is not included in this review application. While the Tribunal has significant sympathy for their situation, it can only make its determination on the facts before it.
The Tribunal notes that this is not a case where the wrong name appears on part of the form but otherwise all the visa applicants details are included in the form and the form has in fact been signed by the visa applicant as the person seeking review (Hassan v MIBP [2013] FCCA 1917 (Judge Emmett, 26 November 2013). The details surrounding the completion of the applicant’s electronic form confirm that the person completing it was asked if there were any other review applicants. In this case the answer “No” was provided. As matter of fact therefore the secondary applicant was explicitly not included in this application for review. This is confirmed by the response to the Tribunal’s invitation in which it is acknowledged that their migration agent’s employee was responsible for completing and lodging the form and did not include the secondary applicant’s name. The Tribunal cannot bestow jurisdiction on itself and it has no power to amend a review application form. On this basis the Tribunal finds that it has no jurisdiction in respect of the applicant’s husband because no application for review has been made in respect of him.
Does the review applicant meet cl.572.223(2)(a)
In the present case, as the applicant currently is enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality 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.
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?
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.
In this case, the applicant holds a passport of China. 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: IMMI14/014. The applicant is proposing to undertake a Certificate IV in Commercial Cookery and a Diploma of Hospitality which is not an ELICOS, which has an assessment level of 3 specified for the applicant’s passport: IMMI 14/014. In this case, therefore the highest assessment level to which the applicant is subject is assessment level 3.
The evidentiary requirements for this assessment level for Subclass 572 are set out in Part 4 of Schedule 5A.
English language proficiency – clause 5A407
The English language proficiency requirements for the applicant are determined by cl.5A407 of Schedule 5A.
The Tribunal was provided with a copy of the applicant’s results in an IELTS test she had undertaken on 28 March 2015. Those results demonstrate an overall band score of 5.5. The applicant has already commenced her proposed courses and therefore will not be undertaking an ELICOS beforehand.
The Tribunal notes that the phrase ‘taken less than 2 years before the date of the application’ in cl.5A407 means an IELTS test taken no earlier than two years before the date of the application.[1] Where a Schedule 5A requirement contains this wording, the applicant can meet the requirement on the basis of a relevant IELTS test result obtained from a test taken at any time in the period from 2 years before the visa application until the visa application is finally determined.
[1] MIAC v Kamal (2009) 178 FCR 379 at [19].
On this basis, the Tribunal finds that the applicant meets cl.5A407(a) as she has given evidence that she has achieved, in an IELTS test taken less than two years before the date of the application, an Overall Band Score of at least 5.5.
She therefore meets the English language proficiency requirements of clause 5A407(a) of clause 5A407 of the Schedule 5A for the purposes of cl.572.223(2)(a).
Other requirements - Clause 5A409
Clause 5A409 requires that the applicant provide evidence that she has successfully completed secondary schooling to the year 11 equivalent and is enrolled in a vocational education and training course or enrolled in a prerequisite to a vocational education and training course. The applicant has provided evidence at the hearing of successfully completing an undergraduate degree in China and, as noted above, is currently enrolled in a Diploma of Hospitality.
She therefore meets clause 5A409 of Schedule 5A for the purposes of cl.572.223(2)(a).
Financial capacity requirements - clause 5A408
The applicant is required to give evidence of funds from an acceptable source that are sufficient to meet her 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’
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.
In this case the first 12 months begins on the expected date of visa grant, which the Tribunal assesses to be 15 May 2016. 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. The applicant’s Advanced Diploma of Hospitality is proposed to end on 17 July 2016. The Department’s policy advises that, if the ending date for calculation of expenses is based on ‘the last day of the applicant’s proposed stay in Australia,’ expenses should be calculated up to the date of expiry of the visa. Relevantly to the applicant’s circumstances the policy provides that students undertaking a course that is, or courses that are together, more than 10 months duration, which do not follow the traditional academic year, should be granted a visa that ceases 2 calendar months after the expected date of course completion (as stated on the final eCoE) and that visas for courses of less than 10 months duration cease 1 calendar month after the expected date of course completion.[2] As the applicant is undertaking courses which in combination are longer than 10 months duration and do not appear to follow a traditional academic year, with a course completion date of 17 July 2016, the Tribunal estimates the last day of the applicant’s proposed stay in Australia to be 17 September 2016. Therefore the “first 12 months” ends on 17 September 2016, which is the earlier date.
Course fees
[2] PAM3 GenGuide G - Student Visas – Visa application and related procedures >The student visa period at [139] (re-issue date 21/5/15).
‘Course fees’ are defined in Clause 5A101 and means the fees for each course proposed to be undertaken by the applicant in the period. The applicant’s CoEs state that in the relevant period she will undertake both courses. A statement ptovided from her educational instoitution indicates that she has paid $2300 and owes $4750. The Tribunal therefore finds the course fee owed by the applicant for the remaining period is $4750.
Living costs
‘Living costs’ are $18,610 per year for a single person with no dependent children (subclause 5A104(1) and IMMI 14/004). This is the basic rate. As the Tribunal has determined the relevant period to end on 17 September 2016, that is, in 5 months, Tribunal finds the living costs for the applicant will be $7,754. The applicant also has a husband and child and is required to add 35% of the basic rate for him ($2714) as her partner and 20% of the basic rate for her child ($1551), even though the child is living overseas.
Travel costs
‘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.
The applicant’s home country is China. The applicant confirmed at the hearing that the cost for one economy one way ticket from Melbourne to China for her and her husband is approximately $2,000.
Total costs
In accordance with clause 5A408, the Tribunal finds that the applicant’s total course fees, living costs and travel costs for the ‘first 12 months’ are as follows:
Course fees $ 4,750.00
Living costs for 12 months $ 7,754.00
2,714.00
1,551.00
Travel costs $ 2,000.00
Total $ 18,759.00
The applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $18,759.00.
In this context the Tribunal notes that her costs as calculated at hearing were significantly higher than this amount because at that time she was still studying her Certificate IV and had a longer period of time remaining in Australia.
Funds from an acceptable source
‘Funds from an acceptable source’ is defined in subclause 5A408(2). It relevantly includes a money deposit held by, or a loan from a financial institution made to, an acceptable individual. If relying on a money deposit, the applicant is required to show that the acceptable individual held it for at least 3 months immediately before the date of application: cl.5A408(2)(aa).
The applicant had initially supplied evidence of financial support by way of money deposits from her aunt and uncle however, as discussed at the hearing, this evidence was insufficient to demonstrate the applicant’s financial capacity at that time. After the hearing she provided evidence that she had been granted a secured personal loan from the Bank of China in the amount of $44,600.
The applicant is an “acceptable individual” as defined in cl.5A101 and she has provided evidence by way of a loan from a financial institution that is more than sufficient to cover her assessed costs for the remaining period of her stay in Australia.
The applicant has, therefore, provided evidence that she has funds from an acceptable source that are sufficient to meet her course fees, living and travel costs which are calculated to total $18,759.00.
The Tribunal finds, therefore, that the applicant meets cl.5A408(1)(a) and cl.5A408(1)(b).
The Tribunal further finds that the applicant, in her visa application, has given a declaration that she has access to funds from an acceptable source that are sufficient to meet those fees and costs for the remainder of her proposed stay in Australia after the first 12 months. It follows that she also meets clause 5A408(1)(aa).
The applicant must also provide evidence to show that the regular income of any individual providing the funds was sufficient to accumulate the level of funding being provided by that individual: cl.5A408(1)(c).
The applicant claimed at the hearing that she works part-time and her husband works fulltime. She has provided evidence of her employment. Given that the personal loan documentation is secured against a bank deposit of the same amount, the Tribunal is satisfied that the regular income of the applicant is sufficient to accumulate the level of funding provided.
On the basis that the applicant has provided evidence of regular income sufficient to accumulate the level of funds provided to her, the Tribunal is satisfied that cl.5A408(1)(c) is met.
In this case cl.5A408(1A) does not apply to the applicant.
The Tribunal is therefore satisfied that the applicant meets all elements of clause 5A408 of Schedule 5A in relation to financial capacity.
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).
CONCLUSION
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
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.
Mary-Ann Cooper
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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Jurisdiction
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Judicial Review
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Procedural Fairness
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Intention
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Remedies
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Statutory Construction
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