1503644 (Migration)

[2016] AATA 3954

1503644 (Migration) [2016] AATA 3954 (2 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GURPREET SINGH

CASE NUMBER:  1503644

DIBP REFERENCE(S):  BCC2015/286444

MEMBER:Antonio Dronjic

DATE:2 June 2016

PLACE OF DECISION:  Melbourne

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 02 June 2016 at 11:03am

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 27 February 2015 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. Where used in this decision:

   a.COE refers to Certificate of Enrolment in a course of study;

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

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

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

3. The applicant applied for the visa on 27 January 2015. 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 applicant against the criteria for a Subclass 572 visa on the basis of enrolment in an Advanced Diploma of Marketing set to commence on 14 March 2016 and finish on 14 March 2017. 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 applicant lodged the review application with this Tribunal on 13 Match 2015 and submitted a copy of the primary decision record.

6. On 20 April 2016 the tribunal invited the applicant to attend a hearing on 12 May 2016. In addition, the tribunal invited the applicant to provide:

   ·A copy of the applicant’s current Certificate of Enrolment (COE) as required for the grant of a student visa;

   ·Document/s that shows that the applicant is currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.

   ·Documents that show the applicant’s past studies in Australia, including copies of attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to the applicant’s past or intended studies in Australia;

   ·An explanation of any gaps in the applicant’s enrolment/s and any documentary evidence relevant to the applicant’s explanation;

   ·Documents that demonstrate that the applicant has sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period, including:

   oevidence of fees of current or proposed course/s the applicant has already paid, or still owe for past courses

   oevidence of funds from an acceptable source

   oif the applicant is seeking to rely on a money deposit, the applicant may need to show how long the deposit was held immediately before the date of the visa application

   oif the applicant has a loan secured against a money deposit, evidence of where the money deposit came from, and the loan must still be current

   oevidence of the regular income of any person who is providing funds to the applicant , and their relationship to you

   oevidence that the applicant has genuine access to the funds that he or she declared while the applicant holds a student visa, such as evidence of any money you have received or been given

7. On 28 April 2016, the applicant’s representative submitted the following documents:

   ·COE for the Advanced Diploma of Marketing set to commence on 14 March 2016 and finish on 14 March 2017;

   ·Letter from ANGAD dated 27 April 2016 as evidence that the applicant paid $1,500 out of total tuition fees of $6,000;

   ·Copy Certificate IV in English language study dated 17 July 2009;

   ·Diploma in Hospitality; statement of results and completion letter as evidence that the applicant completed this course ( which included Certificate III in Hospitality) from 3 August 2009 to 5 July 2011;

   ·Diploma of management, statement of results and completion letter as evidence that the applicant completed this course from 5 September 2009 to 31 August 2012;

   ·Copy of an Advanced Diploma of management, statement of results and completion letter as evidence that the applicant completed this course from 8 October 2012 to 4 October 2013;

   ·Copy Certificate IV in Business Administration issued to the applicant on 18 June 2014 together with the statement of results as evidence that the applicant completed this course from 2 December 2013 to 30 May 2014;

   ·Copy Diploma of Business, statement of results and completion letter as evidence that the applicant completed this course from 2 June 2014 to 28 November 2014;

   ·Copy Certificate IV in Marketing issued to the applicant on 16 August 2015 together with the statement of results as evidence that the applicant completed this course from 16 February 2015 to 16 August 2015;

   ·Copy Diploma of Marketing, statement of results and completion letter as evidence that the applicant completed this course from 24 August 2015 to 24 February 2016;

   ·Affidavit of financial support provided by the applicant’s father;

   ·Copy receipt issued by the Federal Bank from India dated 14 February 2015, as evidence that the applicant’s father, Mr Kulwant Singh deposited an amount of INR 15.500000 (approximately AUD31,688) as a collateral for the loan of INR 13.95,000 (approximately AUD 28,510);

   ·Letter from the Federal Bank of India dated 26 April 2016, as evidence that the Bank sanctioned a loan to the applicant’s father and the balance available is INR13,95,000;

   ·Evidence of Mr Kulwant Singh’s annual income of INR6,89,140 (approximately AUD1409.00) from agriculture issued by the village chief on 12 February 2015;

   ·Copy of Mr Kulwant Singh’s identity card;

   ·Copy applicant’s passport evidencing the name of his parents; and

   ·Copy and translation of a Ration Card.

8. The applicant appeared before the Tribunal on 12 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review by his registered migration agent.

9. On 25 May 2016, the applicant’s representative submitted:

   ·Letter from the educational provider dated 23 May 2016 as evidence that the applicant paid additional $1,500 towards the course fees; and

   ·Copy of the applicant’s Commonwealth Banks Account statement listing transactions from May 2015 to May 2016.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. In the present case, as the applicant is currently enrolled in an Advanced Diploma of Marketing 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.

12. The requirements of cl.572.223 differ depending upon whether or not the applicant is, and was at the time of application, an ‘eligible vocational education and training student’ (eligible VET student) who has a confirmation of enrolment (COE) in each course of study for which they are such a student. ‘Eligible VET student’ is defined in cl.572.111 to mean an applicant for a Subclass 572 visa who is enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector with an eligible education provider and, in some cases, an educational business partner. Eligible education providers, and educational business partners, are those specified by the Minister in an instrument.

13. On the evidence before the Tribunal, the applicant in this case is not an eligible VET student with a corresponding COE and cl.572.223(1A) does not apply.  As such, to meet cl.572.223, 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. 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?

14. 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’ are 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.

15. 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 three.

16. The evidentiary requirements for this assessment level for Subclass 572 are set out in Part 4 of Schedule 5A.

    English language proficiency – clause 5A407

17. The applicant has provided documentary evidence of completing more than 5 years of study in English language in Australia. The COE submitted to the Tribunal indicates that the applicant has a level of English language that satisfies the applicant’s proposed education provider. Accordingly he meets cl.5A407(f).

    Other requirements - Clause 5A409

18. 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, the Tribunal finds he meets clause 5A409.

19. 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. 

    Financial capacity requirements - clause 5A408

20. 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. 

21. The costs are calculated as follows:

    ·Remaining course fees for an Advanced Diploma in Marketing                  $3,000

    ·Living cost for the applicant for 10 months   $15,508

    ·Travel cost  $1,200

    ·Total  $19,708

22. The applicant provided evidence that his father has a loan with the Federal Bank of India in the amount of INR13, 95,000 which is approximately AUD28, 510. This amount is sufficient to cover the above calculated costs.

23. Funds from an acceptable source’ is defined in subclause 5A408(2). In this regard the Tribunal accepts the evidence provided by the applicant that his father is providing funds. The Tribunal accepts the applicant’s father is an acceptable individual. The applicant provided additional documentary evidence establishing the relationship between himself and his father t that were not before the delegate at the time of primary decision.

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

25. 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 his stay in Australia. The applicant therefore meets cl.5A408(1)(aa).  He has also provided a student visa financial support statement signed by his father indicating that the applicant has access to those funds.

26. 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.5A408(1)(c). The applicant provided documentary evidence of father’s income. I am satisfied on the evidence that the applicant’s father has a regular income that is sufficient to accumulate to the level of funding being provided to the applicant. The applicant therefore meets cl.5A408(1)(c).

27. 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).

28. 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

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 572 Vocational Education and Training visa:

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

    Antonio Dronjic

    
    

    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 (1A) or (2).

    (1A)If the applicant is, and was, at the time of application, an eligible vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student:

    (a)the applicant gives the Minister evidence that the applicant has:

    (i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and

    (ii)educational qualifications required by the eligible education provider; 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 sufficient funds to meet:

    (i)the costs and expenses required to support the applicant during the proposed stay in Australia; and

    (ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.

    (2)If subclause (1A) does not apply:

    (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.