1503839 (Migration)

[2015] AATA 3714

1503839 (Migration) [2015] AATA 3714 (19 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Nguyen Anh Thu Le

CASE NUMBER:  1503839

DIBP REFERENCE(S):  BCC2015/313790

MEMBER:Antonio Dronjic

DATE:19 November 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.

Statement made on 19 November 2015 at 3:04pm

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 10 March 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 28 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 a Certificate IV in Business at Baxter Institute. 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 Tribunal received a review application from the applicant on 18 March 2015. It was accompanied by a copy of the delegate’s decision.

6. On 8 October 2015 the Tribunal invited the applicant to attend a hearing on 6 November 2015. 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 30 October 2015, the applicant submitted:

   ·COE for Certificate IV in Business. The Certificate IV course commencement date was set to be 11 September 2015 and the course completion date 25 March 2016. The course fees are set to be $3,180 and the applicant pre-paid the amount of $1,000;

   ·Letter from Baxter Institute dated 29 October 2015 confirming that the applicant is enrolled in Certificate IV in Business course;

   ·Declaration provided by the applicant’s father dated 27 October 2015, stating that he is the person providing financial support to her daughter;

   ·Evidence of transfer of funds to the applicant’s bank in Australia;

   ·Copy Diploma of Beauty Therapy completed by the applicant on 5 August 2015;

   ·Applicant’s Statement explaining that she did not receive adequate advice from her legal advisor and for that reason failed to provide requested documents to the Department;

   ·IELTS TRF dated 11 July 2015 evidencing the applicant’s overall band score of 5.5; and

   ·Letter from Bank of Vietnam confirming that the account was opened on 11 June 2015 and the balance on 15 October 2015 is VND400, 000,000.

8. The applicant appeared before the Tribunal on 6 November 2015 to give evidence and present arguments. This is the summary of her evidence:

9. She arrived in Australia on 19 May 2012 as a holder of a Student via subclass 573. Since her arrival she has completed a Diploma in Beauty Therapy from August 2013 to August 2015. In her application form she stated that she was never married or was in a de facto relationship. Her father works as a driver and also runs his own business in Vietnam. She is not sure whether she wants to undertake further studies after completing the current course.

10. I noted that the delegate refused her visa application because she has failed to provide documentary evidence that her father had funds on his bank account three months before 28 January 2015, when she applied for her current visa. I further noted that she provided to the Tribunal a letter from Bank of Vietnam confirming that her father opened the account on 11 June 2015 and that the balance as of 15 October 2015 is VND400, 000,000. As such, she has failed to provide satisfactory evidence that the money deposit was held by her father for a period of at least three months prior to the date of visa application.

11. She claimed that her migration agent failed to explain her requirements of the applicable Schedule 5A. I indicated to the applicant that the alternative way to meet this requirement is to provide evidence that her father has a bank loan and provide evidence that her father has regular income that is sufficient to accumulate the stated level of funding. She undertook to provide evidence of loan and father’s regular income on or before 16 November 2015.

12. On 16 November 2015, the applicant submitted the following documents:

    ·Statement from Mr Nguyen, the applicant’s husband explaining that he holds subclass 457 visa and earns $750.00 per week and that he will financially support his wife for study and stay in Australia;

    ·Copy of Mr Nguyen Employment Agreement;

    ·Copy Mr Nguyen’s mini wages book evidencing payments received between 8 June 2012 and 9 November 2013;

    ·Statement from the applicant informing the Tribunal that her father did not obtain a loan from his band because ‘bank teller told him that it will take a long time to do a bank loan for studding purposes with some complicated process’. She further stated that she has married her boyfriend on 15 November 2015 and that her husband will become ‘my guarantor who can provide support’;

    ·Copy Marriage Certificate as evidence that the applicant married Mr Nguyen on 15 November 2015;

    ·Letter from Mr Nguyen stating that he met the visa applicant in July 2012; that they commenced relationship in January 2015; that the relationship broke in August 2015 and re-commenced in October 2015

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. In the present case, as the applicant is currently enrolled in Certificate IV in Business 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.

15. 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.

16. 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?

17. 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.

18. In this case, the applicant holds a passport of Vietnam.  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. The evidentiary requirements for this assessment level for Subclass 572 are set out in Part 4 of Schedule 5A.

    Financial capacity

19. In summary, the applicant must demonstrate that she has funds from an acceptable source that are sufficient to meet his course fees, living and travel costs for the first 12 months from when he might be expected to be granted the visa.

20. There is no evidence or submissions that the applicant is funded by a government of her home country or a government in Australia. There is also no evidence or submissions that the applicant has successfully completed at least 75% of her principal course and the certificates of enrolment do not support such a proposition.

21. At the hearing, I explained to the applicant the ‘3 months saving’ requirement in Schedule 5A which applies to her application. Given the applicant applied for the visa on 28 January 2015, I identified the 3 months period to be between 28 November 2014 and 28 January 2015. I explained to the applicant that the evidence provided does not comply with the ‘3 months saving’ requirement set out in Schedule 5A which applies to her application. She was granted additional time to provide evidence of a bank loan and regular income of her father.

22. According to the primary decision record submitted by the applicant with her review application, with her visa application, the applicant submitted a statement of account balance held in the name of her father evidencing the available amount (VND400, 000,000). This statement indicates that the account no xxxx796 was opened on 25 February 2015 (which is also after the visa application day).

23. The applicant provided evidence that her father opened a different bank account (xxxx860) with the Bank of Vietnam on 11 June 2015. The balance on this account as of 15 October 2015 was VND400, 000,000. Tis indicate that the money held on the account number xxxx796 was withdrawn and deposited on a different account on 11 June 2015. I have serious concerns that the money was deposited to the bank account for the sole purposes of creating evidence of financial capacity to support the visa applicant. I do not accept the applicant’s explanation that her father was unable to obtain a bank loan based on the fix deposit of VND400,000,000 because the bank teller told him it was too complicated to do so.

24. I further note that no evidence of her father’s regular income was submitted by the applicant to the Tribunal, despite being granted additional time to do so. In any case I am not satisfied that the applicant provided satisfactory evidence that the money deposit was held by her father for a period of at least three months prior to the date of visa application.

25. I note that the applicant married on 15 November 2015 and is now claiming that her husband will provide requested financial support. Based on the evidence before me, I am not satisfied that the applicant provided evidence of money deposit held by an acceptable individual or other evidence prescribed by the applicable Schedule 5A. The employment agreement of her husband or his mini wages book evidencing payments received between 8 June 2012 and 9 November 2013 do not fit within the definition of ‘funds from an acceptable source’ as set out in Clause 4A408.

26. On the basis of the above, the applicant has not given evidence in accordance with the applicable Schedule 5A requirements and therefore does not satisfy cl.572.223(2)(a).

27. For these reasons, the Tribunal finds that criteria for the grant of a Subclass 572 visa are not met. As there is no evidence the applicant is eligible to be granted a student visa of another subclass, the decision under review must be affirmed.

    DECISION

28. The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.

    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.