1502102 (Migration)

[2015] AATA 3227

1502102 (Migration) [2015] AATA 3227 (23 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmad Ismail

CASE NUMBER:  1502102

DIBP REFERENCE(S):  CLF2014/138556

MEMBER:Gabrielle Cullen

DATE:23 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 23 July 2015 at 4:56pm

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 22 January 2015 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 28 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).

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

4. In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in a Certificate Iv in Accounting and Diploma in Accounting. The visa was refused as the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student as he did not meet the financial requirements as required by cl.572.223 of Schedule 2 to the Regulations and because there is no evidence he has health insurance cover required to meet cl.572.225.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. In the present case, as the applicant is currently enrolled in a Diploma of Accounting 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.

7. 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.

   Does the applicant meet the applicable evidentiary requirements in Schedule 5A?

8. 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.

9. In this case, the applicant holds a passport of Lebanon. 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. In this case, the highest assessment level to which the applicant is subject is assessment level 3.

10. The evidentiary requirements for this assessment level for Subclass 572 are set out in Schedule 5A.

11. The following documents and evidence has been provided by the applicant in submissions to the Tribunal and in evidence at hearing.

    ·CoEs for Certificate IV in Accounting from 19 January 2015 to 22 November 2015 and Diploma of Accounting from 4 January 2016 to 9 October 2016.

    ·Offer of Admission to the University of Wollongong to study a Bachelor of Engineering.

    ·Evidence the applicant indicating he has previously successfully completed a number of English courses and a Diploma of Business and Advanced Diploma of Business in 2014.  

    ·Evidence that the applicant completed a Bachelor of Science from the University of Balamand on 15 September 2011.

    ·Receipts indicating he has paid $5500 in Course fees.

    ·Loan from Jammla Trust Bank in the sum of $20,336 US in the name of the applicant’s brother, Ali Ismail.

    ·Extract of Family record form the Lebanese Family Civil Record indicating Ali Ismail is the brother of the applicant.

    ·Evidence that the applicant successfully completed the Lebanese Baccalaureate being the equivalent of the HSC in 2000.

    English language proficiency – clause 5A407

12. The evidence indicates the applicant successfully completed an Advanced Diploma of Business in 2014. As the evidence indicates that less than two years before the date of the application as the holder of a student visa, the applicant successfully completed a substantial part of a course that was conducted in English and leading to a qualification from AQF at the Certificate IV or higher, he meets clause 5A407(d) and therefore clause 5A407.

    Other requirements - Clause 5A409

13. Clause 5A409 requires that he provide evidence that he 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. As the applicant has provided evidence of successfully completing Senior Secondary Schooling to year 12 and is enrolled in a Certificate Iv in Accounting and Diploma in Accounting, the Tribunal finds he meets clause 5A409.

    Financial capacity requirements - clause 5A408

14. 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’

    Financial capacity requirements - clause 5A408

15. 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’

16. 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.

17. In this case the first 12 months begins on the expected date of visa grant, which is approximately 9 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.

18. The applicant’s principal course, the Diploma of Accounting has a proposed end date of  9 October 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

19. ‘Course fees’ are defined in Clause 5A101. The applicant’s CoE states that the total course fees for the Certificate Iv in Accoutning and Diploma of Accounting are $12,400. 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 $5,500 towards the fees.

20. The Tribunal therefore finds the applicant’s course fees that he still owes for the remaining period is $6,900.

    Living costs

21. ‘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

22. ‘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.

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

    Total costs

24. 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 $ 6 900

    Living costs for 10 months  $ 18 610

    Travel costs  $ 1 500

    Total  $ 27 060

25. The applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $27 060.

    Funds from an acceptable source

26. ‘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 Ali Ismail, the person named in the loans. The Tribunal accepts the applicant’s brother is an acceptable individual.

27. ‘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. 

28. The Tribunal accepts the loan is from a financial institution.

29. 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 brother is an individual who is providing support to the applicant.

30. The applicant has therefore provided evidence of a loan from a financial instituion totalling $20336US, equivalent to $27,585A ( which is more than the required amount of $27,060. 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. The applicant has demonstrated that he has funds from an acceptable source in accordance with cl.5A408(2)(c).

31. 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 24 months. The applicant therefore meets cl.5A408(1)(a) and cl.5A408(1)(b).

32. 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). 

33. 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.5A405(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 brother has a regular income to accumulate to the level of funding being provided to the applicant.

34. 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).

35. In this case cl.5A40 (1A) does not apply to the applicant.

36. 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

37. 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).

    DECISION

38. 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);

    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.