1500994 (Migration)

1500994 (Migration) [2015] AATA 3025 (1 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Anil Bhatti
CASE NUMBER:  1500994
DIBP REFERENCE(S):  BCC2014/2536839
MEMBER:Chris Keher
DATE:1 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) and (c) of Schedule 2 to the Regulations.

Statement made on 01 July 2015 at 12:18pm

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 5 January 2015 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 2 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).
In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in a Diploma and Advanced Diploma of Management and a Diploma and Advanced Diploma of 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.572.223 of Schedule 2 to the Regulations.
The applicant appeared before the Tribunal on 21 April 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Telugu and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, as the applicant currently is enrolled in an Advanced Diploma of Management 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.
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 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: IMMI 14/014. The applicant is also proposing to undertake a Diploma of Business, 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.
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.
The applicant is Mr Anil Bhatti. He is a citizen of India and is 23 years old. He arrived in Australia on 29 April 2013 on a student visa (573) to cease 15 March 2015. He applied for the current visa (572) on 2 October 2014 and was granted a WA-010 visa on that date. He has an IELTS of 5.5 dated 22 October 2012.
The applicant was originally granted the 573 visa to study a Unipath English 2 course from 22 April 2013 to 28 June 2013 and then a Master of Business Administration from 22 July 2013 to 13 November 2014. He completed the English course and then started the MBA however didn’t complete it. He explained at hearing that he studied for 2 of the trimesters and passed 4 subjects and failed one. He was finding it “very hard I was not comfortable with the level”. He wasn’t confident he would pass the course and after speaking with an education consultant decided to study at a lower level with an eventual intention of undertaking Bachelor of Commerce. He has a Bachelor of Business Administration from a university in India and claims this is totally diffident to what is studied at an MBA.
The applicant explained that he then studied at New England Institute of Technology for a Diploma of Management from 18 August 2014 to 15 February 2015. He has completed that course.
The applicant is currently studying a Diploma of Business from 16 February 2015 to 13 September 2015 [69741578] fees $3900. He has paid $3900, owing nil.
He also, according to PRISMS, has CoE “approved” for an Advanced Diploma of Management from 14 September 2015 to 13 March 2016 and an Advanced Diploma of Business from 14 March 2016 to 9 October 2016.
At hearing the applicant and his agent Mr Dwaranpudi attended by phone. They had provided nothing to the Tribunal despite being on notice of the need to do this from the Tribunal letter of offer of hearing dated 11 March 2015. The applicant said he had provided documents to his agent however the agent had provided nothing to the Tribunal.
Post hearing the applicant provided a statement, it doesn’t properly address the issues as raised by the delegate and there was again no submission on any relevant matter from the agent Mr Dwaranpudi. The submission from the applicant was not on point. It addressed why he changed from 573 studies to what he is studying now, but didn’t address the issue before the delegate which related to access to funds. He did provide a bank statement from his father for the period 13 October 2014 to 29 April 2015. This is for the State Bank of India. He also provided a profit and loss statement from his father’s general store business, and copies of tax assessments. A copy of a declaration from his brother is also provided; detailing that the income from his fruit business is applied to family income which he acknowledges is being applied to support his brother in Australia. His father has supplied a declaration to the effect that he has a fixed deposit of R1,700,000 and has taken out a loan of R1,530,000 equivalent to about AUD$28,333. The State Bank of India statements provided show a withdrawal of R1,700,000 on 14 October 2014 and a deposit of the loan amount of R1,530,000 on 15 October 2014.
Subsequently on 23 June 2015 the applicant provided some more documents without any attempt at explanation by the agent Mr Dwarampudi or the applicant. This includes a statement of account from New England College of Technology. This indicates that nil owed for the Diploma of Business. The applicant also provided further financial documents in the form of an Agreement of Sale dated 22 June 2015. His father has agreed to sell land for R2,024,925. The father has also completed an affidavit of support. State Bank of India statements for the period 19 January 2015 to 15 June 2015 include payments seemingly from the father to the applicant on 2 occasions of R100,140. Other documents seem to indicate that one of the amounts was paid into the applicant’s Commonwealth Bank account on 16 June 2015.
English language proficiency. The applicant has an IELTS dated 22 October 2012 with an overall band score of 5.5. This meets the requirements of 5A407.
Financial capacity. The applicant has provided a declaration as to access to funds with his original application. He is supported by his father. He had provided the above evidence of a loan and sale of land and also payment of amounts into the applicant’s bank account. I accept this is true. This includes a fully drawn loan equivalent to about AUD$28,333
The course fees for the Diploma of Business [69741578] are paid; for the Advanced Diploma of Management [69741922] and Advanced Diploma of Business [69741B73 are $3900 each nil paid. This leaves approximately $6,000 owing over the next 12 months. Living costs for the applicant are detailed in the Ministers determination to be $18610 per annum. Travel costs are estimated by me to be $1500. The relevant period in question is “the first 12 months”. The total of funds required to be evidenced I find to be $6,000+$18,610 + $1500 = $26,110. 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 father is an “acceptable source”. I accept the applicant has access to the above funds. I also accept he has sufficient funds for course fees, living costs and travel costs. This meets the requirements of Clause 5A408.
Other requirements. The applicant provided a copy of his Intermediate studies in India and a Provisional Certificate for his Bachelor of Business Administration to the Department. I accept this is equivalent to Year 11. He is studying a VET level course. This meets the requirements of Clause 5A409.
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).
Does the applicant have access to the funds?
To satisfy the requirements of being a genuine applicant for entry and stay as a student, the Tribunal must also be satisfied the applicant will have access, while holding the visa, to the funds demonstrated or declared in accordance with the Schedule 5A requirements relating to financial capacity.
I accept he has access to the funds as detailed above.
As the Tribunal is satisfied the applicant will have access to the relevant funds, cl.572.223(2)(c) is met.
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) and (c) of Schedule 2 to the Regulations.
Chris Keher

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.
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.

[2015] AATA 3025

1 July 2015

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Immigration

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