1504651 (Migration)
[2016] AATA 3956
•1 June 2016
1504651 (Migration) [2016] AATA 3956 (1 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr KWAKU DARKO ASIEDU
CASE NUMBER: 1504651
DIBP REFERENCE(S): BCC2015/541645
MEMBER:Mary-Ann Cooper
DATE:1 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 573 Higher Education Sector visa:
·cl.573.223(2)(a) of Schedule 2 to the Regulations.
Statement made on 01 June 2016 at 2:22pm
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 31 March 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 17 February 2015. At the time of lodgement, Class TU contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).
In the present case, the delegate assessed the applicant against the criteria for a Subclass 573 visa on the basis of enrolment in a Graduate Certificate in Theology. The visa was refused because the applicant did not provide the evidence required to demonstrate he was a genuine student as required by cl.573.223 of Schedule 2 to the Regulations. Specifically, that he did not meet cl.573.223(2)(a) because he had not provided evidence as required by Schedule 5A.
The applicant appeared before the Tribunal on 18 November 2015 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.
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 has an offer of enrolment in a Master of Arts (Ministry) as his principal course, the subclass that may be granted is Subclass 573. 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 573, this requirement is contained in cl.573.223, which is extracted in the attachment to this decision.
The requirements of cl.573.223 differ depending upon whether or not the applicant is, and was at the time of application, an ‘eligible higher degree student’ who has a confirmation of enrolment (COE) in each course of study for which they are such a student. ‘Eligible higher degree student’ is defined in cl.573.111 to mean an applicant for a Subclass 573 visa who is enrolled in a bachelor’s degree or a master’s degree by coursework or for visa applications made on or after 23 November 2014 an advanced diploma in the higher education sector, and any preliminary course, with an eligible education provider or, in some cases, an educational business partner. Eligible education providers, and educational business partners, are those specified by the Minister in an instrument.
On the evidence before the Tribunal, the applicant in this case was not at the time of application an eligible higher degree student with a corresponding COE and cl.573.223(1A) does not apply. As such, to meet cl.573.223, 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?
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.
In this case, the applicant holds a passport of Ghana. The assessment level for a holder of such a passport for Subclass 573 (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.
The evidentiary requirements for this assessment level for Subclass 573 are set out in Part 5 of Schedule 5A.
English language proficiency – clause 5A507
The delegate’s decision, a copy of which was provided with the review application, indicates that the application as refused because the delegate was not satisfied that the applicant had the required English language proficiency.
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].
The applicant has provided the results of an IELTS test, taken on 11 April 2015 demonstrating an overall band score of 7.0. The applicant confirmed he will not be undertaking an ELICOS course prior to commencing his Master of Arts.
On this basis, the Tribunal finds that the applicant meets cl.5A507(a) as he has given evidence that he has achieved, in an IELTS test taken less than two years before the date of the application, an Overall Band Score of at least 6.0.
He therefore meets the English language proficient requirements of clause 5A507(a) of clause 5A507 of the Schedule 5A, for the purposes of cl.573.223(2)(a).
Other requirements - Clause 5A509
Among several alternatives, clause 5A409 requires that the applicant provide evidence that he or she has successfully completed a qualification from the Australian Qualifications Framework at the Certificate IV level or higher in a course conducted in Australia.
The applicant has provided evidence, as confirmed by PRISMS records, of his successfully completion of a Graduate Diploma in Theology in Australia.
He therefore meets the requirements of clause 5A509 of Schedule 5A for the purposes of cl.573.223(2)(a).
Financial capacity requirements - clause 5A508
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.
Prior to the hearing the applicant provided financial information relating to his uncle in Ghana who indicated that he would support the applicant. The Tribunal advised that applicant that his uncle was not an ‘acceptable individual” as defined. The applicant later provided money deposit details from his father, also accompanied by a declaration that he would financially support his son throughout his study in Australia. Although demonstrating a significant money deposit, the applicant did not demonstrate that the funds were held 3 months before the date of the application. Ultimately the applicant provided documents from his brother demonstrating that he would support him financially and these are discussed further below.
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 30 June 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 Master of Arts is proposed to end on 31 January 2018. Therefore the ‘first 12 months’ is the period from 30 June 2016 to 30 June 2017.
Course fees
‘Course fees’ are defined in Clause 5A101 to mean the fees for each course proposed to be undertaken by the applicant in the period, as indicated by the proposed education providers in a letter or other document. The total course fees indicated by the education provider are $21,760 for the course from 22 February 2016 to 31 January 2018. The Tribunal is calculating course fees for the period to 30 June 2017, a proximately three-quarters of the way through the course. On this basis the Tribunal estimates the course fees for this period to be $16,320. The Tribunal considers it appropriate to deduct from the total course fees, any amounts the applicant has already paid. Documents provided to the Tribunal demonstrate that the applicant has paid $11,745.00 at the time of its decision. On this basis the Tribunal estimated that his course fees in the relevant period to be $4575.00.
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’ and applies to the assessment of the applicant’s costs.
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 Ghana. The cost for one economy one way ticket from Melbourne to Ghana varies but is approximately $1,000.
Total costs
In accordance with clause 5A508, 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 $ 4575
Living costs for 12 months $18610
Travel costs $ 1000
Total $24185
The applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $24185.
Funds from an acceptable source
‘Funds from an acceptable source’ is defined in subclause 5A508(2) and includes a money deposit held by an acceptable individual for at least 3 months immediately before the date of the application. An acceptable individual is further defined to include, among others, a brother or sister of the applicant.
In this regard the Tribunal accepts the evidence of the applicant that his brother, the person named in the bank statements and other documents provided, is an “acceptable individual” for the purposes of its assessment.
The applicant has provided evidence of a money deposit held by his brother in a financial institution totalling GHS 69,550,00, equivalent to AUD$24,730.65 ( at the relevant date, which is more than the required amount of $24,185.00. The Tribunal further notes that this amount has increased to an amount of GHS 216,450.00 as at 26 May 2016. The Tribunal is therefore satisfied that the applicant has provided evidence of a money deposit in the name of an acceptable individual that has been held for at least the three months prior to the date of the application. The Tribunal is further 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 12 months. The applicant therefore meets cl.5A508(1)(a) and cl.5A508(1)(b).
The applicant has provided a declaration in his 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.5A508(1)(aa). He has also provided correspondence from his brother confirming he has access to those funds.
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.5A508(1)(c). The Tribunal notes that the applicant has provided documents including bank statements and wage and employment information confirming his brother’s regular income. On the basis of this evidence, the Tribunal is satisfied that the regular income of the applicant’s brother is sufficient to accumulate to the level of funding to be provided by him. Therefore the applicant meets cl.5A508(1)(c).
In this case cl.5A508 (1A) does not apply to the applicant.
The Tribunal is therefore satisfied that the applicant meets all elements of clause 5A508 of Schedule 5A in relation to financial capacity.
CONCLUSION
On the basis of the above, the applicant has given evidence in accordance with the applicable Schedule 5A requirements and therefore satisfies cl.573.223(2)(a).
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 573 Higher Education Sector visa:
·cl.573.223(2)(a) of Schedule 2 to the Regulations.
Mary-Ann Cooper
Member
ATTACHMENT – Extracts from the Migration Regulations 1994
573.223(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 higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree 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 573.223(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.
Key Legal Topics
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Immigration
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Administrative Law
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Judicial Review
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Statutory Construction
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Procedural Fairness
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