1504807 (Migration)

[2015] AATA 3637

1504807 (Migration) [2015] AATA 3637 (16 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Shivani Shivani

CASE NUMBER:  1504807

DIBP REFERENCE(S):  BCC2015/605113

MEMBER:Don Lucas

DATE:16 November 2015

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 16 November 2015 at 4:54pm

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 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).

2. The applicant applied for the visa on 24 February 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).

3. In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in a Vocational Education and Training (VET) sector course. The visa was refused because the applicant did not provide the evidence required to demonstrate that he met the financial capacity requirements in cl.572.223(2)(a) in Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 16 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case, as the applicant currently is enrolled in a Diploma of Hospitality 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.

8. 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.

9. 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?

10. 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.

11. 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 and only 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.

12. 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.

    English language requirements

13. The applicant has provided evidence of having undertaken a diploma of management course on eight February thousand 15 while the holder of a student visa. The Tribunal finds that the applicant satisfies the English language requirements in Sch 5A, 5A407(d)(iii).

    Financial capacity requirements

14. The applicant has presented with the following enrolments:

    ·Certificate III in Commercial Cookery due for completion on one March 2016; total course costs $8,000, $3,500 of which have been paid leaving remaining course fee of $4,500;

    ·Certificate IV in Commercial Cookery commencing in March 2016 and due for completion in September 2016, total course costs $3000, currently unpaid;

    ·Diploma of Hospitality commencing in September 2016 and due for completion in March 2017, total course cost $3000, currently unpaid. for the purposes of calculating course fees for the first 12 months, the Tribunal accepts that the applicant will only be required to pay one half of the diploma of hospitality costs in the relevant period, being $1,500;

15. The Tribunal accordingly calculates that the applicant is required to demonstrate funds from an acceptable source in relation to course costs in the sum of $9,000.

16. The applicant’s living costs for the first 12 month period are $18,610 as defined in schedule 5A.

17. The Tribunal estimates the applicant’s travel costs to be $1,200

18. Accordingly, the sum total of the applicant’s course fees living costs and travel costs is $28,810, and the applicant is required to show funds from an acceptable source in at least this amount. This equates to some INR 1,356,087 on current conversion rates.[1]

    [1]

19. The evidence before the Department did not demonstrate funds from acceptable source in respect of the amount calculator by the Department required for the applicant to demonstrate.

20. However, the applicant has presented fresh evidence which satisfy the Tribunal that the applicant has demonstrated funds from an acceptable source in the sum of INR 1,540,605.

21. This is comprised of two fixed term deposits held in the name of the applicant’s father in the sum of INR 190,605, held with the State bank of Patiala, which meets the definition of financial institution for the purposes of Schedule 5A, and each held for at least three months prior to the date of application.

22. This is also comprised of two overdraft facilities in the applicant’s father’s name from the State bank of Patiala secured against current accounts also in the father’s name, and in the total sum of INR 1,390,000. Relevant case law permits a finding that an overdraft facility having the characteristics of an enforceable agreement to provide funds on condition of repayment may constitute a loan from a financial institution as this term is defined in schedule 5A (see Patel v MIAC (2013) 211 FCR 35 at [19], and in the present case the Tribunal so finds.

23. Accordingly, the Tribunal is satisfied that the applicant has demonstrated evidence of funds from acceptable source sufficient to meet course fees, living costs and travel costs.

24. The Tribunal accordingly finds that the applicant satisfies the financial capacity requirements in 5A408.

    Other requirements

25. The applicant is enrolled in a VET sector course and has provided evidence of completion of the equivalent of year 12, and accordingly of year 11 in her home country.

26. The Tribunal is accordingly satisfied that the applicant meets the other requirements in cl.5A409.

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).

    CONCLUSIONS

28. It is clear from the primary decision that the Department only placed reliance upon the applicant’s failure to demonstrate relevant financial capacity in schedule 5A for the purposes of cl.572.223(2)(a).

29. Given the findings above that the applicant meets all relevant Schedule 5A requirements relating to financial capacity, English language and other requirements, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

30. 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.

    Don Lucas

    
    

    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.