1505163 (Migration)

1505163 (Migration) [2015] AATA 3724 (24 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Thuiyahandi Sameera Heshan SILVA
CASE NUMBER:  1505163
DIBP REFERENCE(S):  BCC2015/189517
MEMBER:Alison Mercer
DATE:24 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 24 November 2015 at 5:00pm

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 2 April 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 16 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).
In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in Diplomas of Business and Management. 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. In particular, the delegate was not satisfied that the applicant had demonstrated the required financial capacity for his assessment level (3) as set out in Schedule 5A to the Regulations. The delegate found that the fixed deposit held by the applicant’s father Thuiyahandi Ananda Kumaradasa Silva with the Sanasa Business Development Bank had not been held for at least 3 months prior to the applicant making his visa application, as it was opened on 4 November 2014. Moreover, the delegate was not satisfied that there was evidence that the applicant’s father’s regular income was sufficient to accumulate the funds to be provided to the applicant. The delegate found that the applicant did not satisfy cl.572.223(2)(a).
The Tribunal received a review application from the applicant on 16 April 2015. It was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Ms Vithanage Anoja Niroshini, as his representative and authorised recipient for correspondence for the purposes of the review.
On 8 October 2015, the Tribunal wrote to the applicant via his agent to invite him to attend a hearing on 5 November 2015. He was requested to provide all documents upon which he wished to rely before the hearing, and in particular, requested to provide evidence of his current and past enrolments, completed study in Australia, an explanation for any gaps in his studies, evidence of outstanding course fees, and evidence of funds from an acceptable source sufficient to meet his fees, living and travel costs, including the duration of any money deposit relied upon, evidence of the regular income of any person providing financial support to him and evidence that he would have genuine access to the funds in question, plus evidence of that he met the applicable English proficiency and secondary education completion requirements for his assessment level.
On 4 November 2015, the Tribunal received a submission from the applicant’s agent consisting of:
·CoEs for Diploma of Business (12 January 2015 to 12 July 2015) and Diploma of Management (13 July 2015 to 10 January 2016, course fee: $3,000) and letters from ALTEC (education provider) confirming the applicant’s enrolment in these courses and his completion of the Diploma of Business;
·invoice indicating that the applicant has paid $1,200 of the $3,000 fee for the diploma of Management course;
·statement dated 30 October 2015 from the applicant’s father Thuiyahandi Ananda Kumaradasa Silva indicating that he will provide financial support to the applicant for his living and education fees in Australia and guarantees that the applicant will have full access to these funds. He encloses a copy of a fixed deposit certificate held with a Sri Lankan bank and declares that his regular income and accumulated savings was sufficient to accumulate the level of funding being provided to the applicant;
·fixed deposit receipt issued on 11 May 2015 by Bank of Ceylon for 12 months for sum of Rs 789,000 [approximately AUD $7,752] held by Mr T A K Silva: statement from Ceylon Electricity Board Pension Fund for Mr T A K Silva, showing monthly payment of Rs 17,802.40, or Rs 213,629 per year [approximately AUD $175 per month, or AUD $2,100 per year], as at 20 October 2015;
·copy of biodata page of Sri Lankan passport of Thuiyahandi Ananda Kumaradasa Silva;
·IELTS test report form for the applicant indicating he obtained an overall band score of 6.5 in a test he undertook on 28 February 2015;
·copy of the applicant’s Bachelor of IT degree, academic transcript and letter of completion dated 14 November 2012 from Charles Sturt University;
·copy of the applicant’s Certificate IV and Diploma in IT completed in June 2009 and December 2009 respectively, plus letters of completion and academic transcript from Holmesglen Institute of TAFE;
·proof of the applicant’s completion of General Certificate of Education in Sri Lanka; and
·applicant’s marriage certificate to Sandanyakage Sashika Gayani Charles on 11 September 2015.
The applicant appeared before the Tribunal on 5 November 2015 to give evidence and present arguments. The Tribunal also received submissions from the applicant’s agent. The applicant also provided several documents, being:
·statement from the applicant’s education provider ALTEC dated 12 February 2015 indicating that his outstanding fees tuition fees for the Diploma of Management were $1,200; and
·screen shot of the applicant’s electronic funds transfer of $600 to education provider Pass Global Pty Ltd (trading as ALTEC) on 5 November 2015.
Following the hearing, the Tribunal received additional material from the applicant on 18 and 23 November 2015 consisting of the following:
·statement from ALTEC dated 17 November 2015 indicating that the applicant has no outstanding fees tuition fees for the Diploma of Management;
·statement of attainment from ALTEC dated 16 November 2015 indicating that the applicant has passed 6 out of 8 subjects listed, having 2 left to complete;
·letter from Indrajith Management Services, Panadura, Sri Lanka, dated 10 November 2015, stating that the applicant’s father Mr T Ananda K Silva has a monthly income of Rs 51,327/70 from the following sources (other than business income): Ceylon Electricity Board pension; fixed deposit interest and rental income, and that he is also carrying out a medium scale business (TAS Enterprises) manufacturing garments and textiles, which has an average monthly profit of Rs 55,000; and
·submission from the applicant’s agent stating that the applicant has provided evidence of having completed 6/8 subjects (at least 75% of his course), has paid all tuition fees and that his father has a fixed deposit in the Bank of Ceylon equivalent to AUD $7,890, which would cover the living costs and travel costs for the applicant and his wife for the 2 months until the course ended on 10 January 2015.
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 is enrolled in a Diploma of Management 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.
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.
On the evidence before the Tribunal, the applicant in this case has not at any relevant time been 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?
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 Sri Lanka. 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.
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 proficiency
The Tribunal is satisfied from the evidence provided that the applicant achieved an IELTS overall band score of 6.5 in a test he took on 28 February 2015, which he undertook less than 2 years before his visa application was made on 16 January 2015. There is no indication that he will undertake an ELICOS. Accordingly, the Tribunal is satisfied that he meets the requirements in cl.5A407(a) in relation to his English language proficiency.
Financial capacity
As discussed with the applicant and his agent at the hearing (and subject to being provided with updated information from the applicant regarding his outstanding fees and course progression), the Tribunal calculated that the applicant had to demonstrate that he had, or had access to, the following funds, for the next 12 months (or less, as in this case, if the applicant’s course will not run for as long as 12 months). In this case, the Tribunal considered it fair to consider the relevant period as December 2015 (date of likely visa grant in the event of a successful review) and March 2015, approximately 6 weeks after the finish date of his course:
·tuition fees: $0
·living costs for the applicant: $18,610/12 x 3 = $4,650;
·living costs for the applicant’s wife: $4,650 x 35% = $1,627.50; and
·return travel costs: $1,000
·TOTAL: $7,277.50
The Tribunal is satisfied that the applicant and his wife do not have children, and so no school costs need to be taken into account.
The applicant relied upon a fixed deposit held by his father, Thuiyahandi Ananda Kumaradasa Silva, with the Bank of Ceylon. The Tribunal is satisfied that Thuiyahandi Ananda Kumaradasa Silva is the applicant’s father since he is listed as such on the applicant’s marriage certificate issued on 11 September 2015, provided to the Tribunal. The Tribunal is satisfied that the applicant’s father is an acceptable individual, and that the Bank of Ceylon is an acceptable financial institution, for the purposes of Schedule 5A.
A statement issued by the Bank on 11 May 2015 shows that Mr Silva holds a fixed deposit of Rs 789,000 [approximately AUD $7,752] on a 12 month term. It was conceded by the applicant that the applicant’s father had not held this fixed deposit for at least 3 months prior to the applicant’s visa application on 16 January 2015. However, it was submitted by the applicant and his agent that the applicant had completed at least 75% of his course, and thus his father was not subject to the requirement to have held the money deposit for at least 3 months prior to the visa application date, as per cl.5A408(a) of the definition of ‘funds from an acceptable source.’
The Tribunal is satisfied from the statement of attainment from ALTEC dated 16 November 2015 that the applicant has passed 6 out of 8 subjects listed, having 2 left to complete, as at the time of the Tribunal’s decision. The Tribunal is satisfied that this equates to the applicant having completed 75% of the Diploma of Management. It is further satisfied from his oral evidence at hearing that the applicant is applying for the visa to complete the course and that he does not propose to undertake any further course after this. Accordingly, the Tribunal finds that it is not necessary for the money deposit held by his father to have been held for at least 3 months prior to the applicant’s visa application, as per (aa) of the definition of ‘funds from an acceptable source in cl.5A408.
The Tribunal finds that the amount held by the applicant’s father exceeds the funds that the applicant is required to demonstrate, and that he thus satisfies cl.5A408(a) of the definition of ‘funds from an acceptable source.’ The Tribunal is further satisfied, from the documentary evidence provided, that the applicant’s father had sufficient regular income from his pension, rental income, interest income and business income, to accumulate the level of funding he is providing to the applicant.
Accordingly, the Tribunal is satisfied that the applicant meets cl.5A408 in relation to his financial capacity.
Other requirements
The applicant has provided evidence of having completed the equivalent of year 12 in Sri Lanka, and the Tribunal is satisfied that he is enrolled in a vocational education and training course, being the Diploma of Management.
The Tribunal therefore finds that the applicant meets cl.5A409.
On the basis of the above, the Tribunal finds that the applicant has given evidence in accordance with the applicable Schedule 5A requirements, and therefore satisfies cl.572.223(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 572 Vocational Education and Training visa:
·cl.572.223(2)(a) of Schedule 2 to the Regulations.
Alison Mercer

Member
ATTACHMENT – Extracts from the Migration Regulations 1994
Schedule 2 – Part 572 Vocational Education and Training
…
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.
Schedule 5A – Part 4 – Vocational Education and Training Sector
…
Division 3 - Requirements for assessment level 3
Clause 5A407    English language proficiency
[5A407]    The applicant must give evidence that one of the following applies:
(a) the applicant:
(i) will not undertake an ELICOS before commencing his or her principal course; and
(ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5;
(b) the applicant:
(i) will undertake an ELICOS of no more than 30 weeks duration before commencing his or her principal course; and
(ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 4.5;
(c) the applicant:
(i) is fully funded; and
(ii) has a level of English language proficiency that satisfies his or her proposed education provider; and
(iii) if the applicant is to undertake an ELICOS before commencing his or her principal course — will undertake an ELICOS of no more than 30 weeks duration;
(d) the applicant had, less than 2 years before the date of the application:
(i) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted:
(A) in Australia; and
(B) in English; or
(ii) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that:
(A) is specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English; or
(iii) as the holder of a student visa — successfully completed a substantial part of a course (other than a foundation course) that:
(A) was conducted in English; and
(B) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
(iv) successfully completed a substantial part of a course that:
(A) is specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English; and
(D) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
(v) successfully completed a foundation course that was conducted:
(A) in Australia; and
(B) in English; or
(vi) successfully completed a course in foundation studies that:
(A) is specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English;
(e) the applicant achieved, less than 2 years before the date of the application, the required score in a test that is specified in a legislative instrument made by the Minister under clause 5A102;
(f) the applicant has:
(i) a level of English language proficiency that satisfies the applicant’s proposed education provider; and
(ii) at least 5 years of study in English undertaken in 1 or more of the following countries:
(A) Australia;
(B) Canada;
(C) New Zealand;
(D) South Africa;
(E) the Republic of Ireland;
(F) the United Kingdom;
(G) the United States of America.
Clause 5A408    Financial capacity
[5A408] (1)The applicant must give, in accordance with this clause:
(a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 12 months:
(i) course fees;
(ii) living costs;
(iii) school costs; and
(aa) a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 12 months; and
(b) evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and
(c) evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.
[5A408] (1A) If the applicant is:
(a) fully funded; or
(b) an applicant:
(i) who is not funded, wholly or partly, by:
(A) the Commonwealth Government, or the government of a State or Territory; or
(B) the government of a foreign country; or
(C) a multilateral agency; and
(ii) who proposes to undertake a course of study that is, or courses of study that are together, of a duration of less than 12 months; and
(iii) for whom, if applying in Australia, the proposed period of stay will result in the applicant’s total period of lawful stay in Australia being less than 12 months; or
(c) the subject of an arrangement by which the course fees, living costs and travel costs for the primary person’s full period, assessed for the primary person alone, will be met by:
(i) a provincial or state government in a JD_legend_current_mrPop06841foreign country, with the written support of the government of that country; or
(ii) an organisation specified in a legislative instrument made by the Minister for this paragraph;
the applicant must give evidence that the applicant has access to funds that are sufficient to support each member of the applicant’s family unit who is not a family applicant.
[5A408] (2)In this clause:
financial support, from an applicant’s proposed education provider, means:
(a) a scholarship that:
(i) is awarded on the basis of merit and an open selection process; and
(ii) is awarded to a student who is enrolled in a course leading to a Certificate IV qualification or a higher qualification; and
(iii) is awarded to the greater of:
(A) not more than 10% of overseas students in a course intake; and
(B) not more than 3 overseas students in a course intake; or
(b) a waiver of the applicant’s course fees carried out in the following circumstances:
(i) the applicant is part of an exchange program that involves:
(A) a formal agreement between an education provider and an education institution in a foreign country; and
(B) the reciprocal waiver of course fees as part of that agreement;
(ii) the applicant proposes to study full-time;
(ii) the applicant’s proposed studies will be credited to a course undertaken by the applicant in the applicant’s home country.
funds from an acceptable source means one or more of the following:
(a) if the applicant:
(i) has successfully completed at least 75% of the requirements for his or her principal course; and
(ii) has applied for the visa in order to complete the course; and
(iii) does not propose to undertake any further course;
a money deposit held by an acceptable individual;
(aa) if paragraph (a) does not apply — a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application;
(b) a loan from a financial institution made to, and held in the name of, an acceptable individual;
(c) a loan from the government of the applicant's home country;
(d) financial support from:
(i) the applicant's proposed education provider; or
(ii) the Commonwealth Government, or the government of a State or Territory; or
(iii) the government of a foreign country; or
(iv) a corporation that:
(A) conducts commercial activities outside the country in which it is based; and
(B) employs the applicant in a role in relation to which the applicant's principal course is of direct relevance; or
(v) a multilateral agency; or
(vi) a provincial or state government in a foreign country, provided with the written support of the government of that country; or
(vii) an organisation specified by the Minister in an instrument in writing for this subparagraph; or
(viii) an acceptable non-profit organisation.
Clause 5A409    Other requirements
[5A409] The applicant must give evidence:
(a) that he or she has successfully completed secondary schooling to the year 11 level (or its equivalent); and
(b) that:
(i) he or she is enrolled in a vocational education and training course; or
(ii) he or she is enrolled in a course that is a pre-requisite to a vocational education and training course and a vocational education and training course; or
(iii) he or she is enrolled in a course that is a pre-requisite to a vocational education and training course and has an offer of a place in a vocational education and training course.

[2015] AATA 3724

24 November 2015

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