1505279 (Migration)

1505279 (Migration) [2015] AATA 3944 (18 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harsimranjeet Singh
CASE NUMBER:  1505279
DIBP REFERENCE(S):  BCC2015/490074
MEMBER:Mary-Ann Cooper
DATE:18 December 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 18 December 2015 at 10:17am

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 30 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 12 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).
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. 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. Specifically the delegate was not satisfied that he met the Schedule 5A criteria for the grant of the visa because he had not provided evidence of his relationship with the source of his funds.
The applicant appeared before the Tribunal on 8 December 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 is 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.
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 he is 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 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 3: IMMI 14/014. In this case, therefore 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 language proficiency – clause 5A407
The English language proficiency requirements for the applicant are determined by cl.5A407 of Schedule 5A. One of the ways which an applicant can satisfy these requirements is, less than 2 years before the date of the application and while the holder of a student visa, to have successfully completed a substantial part of a course (other than a foundation course) that was conducted in English and led to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher (clause 5A507(1)(d)(iii)).
The evidence indicates the applicant was awarded an Advanced Diploma of Business on 1 October 2013 by St. Stephen Institute of Technology. Departmental information and documents on the file indicate that the course was conducted in English, was at the time an AQF recognised course at Certificate IV level or higher.
The Tribunal is therefore satisfied that, less than two years before the date of the application, the applicant, as the holder of a student visa, successfully completed a substantial part of a course that was conducted in English and led to a qualification from the AQF at Certificate IV level or higher.
Accordingly. he meets clause 5A407(d)(iii) and therefore clause 5A407 as a whole.
Other requirements - Clause 5A409
Clause 5A409 requires that the applicant 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.
Documents on the Department’s file and as provided to the Tribunal confirm that the applicant successfully completed Year 12 in India. As noted above, he is currently enrolled in an Advanced Diploma of Marketing in the VET sector.
He therefore meets clause 5A409.
Financial capacity requirements - clause 5A408
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.
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 1 January 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 Advanced Diploma in Marketing is proposed to end on 14 February 2016. The Tribunal estimates the last day of the applicant’s proposed stay in Australia to be 14 March 2016, that is, a period of approximately 3 months.
Course fees
‘Course fees’ are defined in Clause 5A101. The applicant’s CoE states that the total course fee for the Advanced Diploma of Marketing is $5,500. The Tribunal considers it appropriate to deduct from the total course fees, any amounts the applicant has already paid. Following the hearing the applicant provided a document from his college confirming that he had paid all his fees. The Tribunal therefore finds the course fee owed by the applicant for the remaining period is $0.
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’. As the Tribunal has determined the relevant period to be 3 months, the Tribunal finds the living costs for the applicant will be $4,652.
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 India. The applicant confirmed at the hearing that the cost for one economy one way ticket from Melbourne to India varies but is approximately $1,000.
Total costs
In accordance with clause 5A408, 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 $0
Living costs for 7 months  $4,652
Travel costs  $1,000
Total  $5,652
The applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $5,652.00
Funds from an acceptable source
‘Funds from an acceptable source’ is defined in subclause 5A408(2). In this regard, in his visa application, the applicant relied on funding from his parents. As indicated by the Department file and material provided to the Tribunal, he subsequently seeks to rely on funding from his brother. In this context he had supplied a statement from his brother confirming that he would support the applicant financially, his brother’s birth certificate, a statement from the US Bank indicating that someone with his brother’s name had a line of credit available in the amount of $57,552.54 and an Income tax return for someone in his brother’s name. As the Tribunal indicated to the applicant at the hearing, there were a number of reasons that the Tribunal did not give much weight to these documents as evidence of his relationship to the source of the funds. The Tribunal allowed further time for the provision of documentation confirming their relationship.
The Tribunal also considered, in the alternative, whether the applicant could meet the definition of “funds from an acceptable source” specified at cl.5A408(2)(a), which imposes no period of time that for which the funds must have been held but requires an applicant, among other things, to have successfully completed at least 75% of the requirements for his/her principal course (cl.5A408(2)(a)(i)). As noted above, the CoE submitted by the applicant to the Department indicated that his course was due for completion in February 2016. At the hearing the applicant claimed that he had completed over 75% of the course. He later provided documentation from his college confirming this. The Tribunal is therefore satisfied that the applicant meets cl.5A408(2)(a)(i).
In addition, clause 5A408(2)(a)(ii) requires that the applicant has applied for the visa in order to complete the course and, in clause 5A408(2)(a)(iii) that he does not propose to undertake any further courses. The Tribunal notes that the Advanced Diploma of Marketing is the only course included in this visa application and it is satisfied that cl. 5A408(2)(a)(ii) is met. At the hearing the applicant said that at this stage he does not propose to undertake any further courses. The Tribunal is therefore satisfied he meets cl.5A408(2)(a)(iii).
In the circumstances the applicant is only required to establish that he has a money deposit from an acceptable individual that is sufficient to meet his expenses as calculated above at $5652.00. An “acceptable individual” is defined to include the applicant. Following the hearing the applicant provided a bank statement indicating that he has a balance of $10,351.64 credit in his Commonwealth bank account.
The Tribunal is therefore satisfied that the applicant’s evidence of his own funds constitutes evidence of funds from an acceptable source and meets the financial capacity requirements of clause 5A408(1)(a) and (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.5A408(1)(aa).
In addition, 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 Tribunal notes the evidence that the applicant has part-time employment as an auto mechanic and is satisfied that this provides him with regular income sufficient to accumulate to the level of funding required.
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 for the remainder of the applicant’s stay in Australia. The applicant therefore meets cl.5A408(1)(c).
In this case cl.5A408(1A) does not apply to the applicant.
The Tribunal is therefore satisfied that the applicant meets all elements of clause 5A408 of Schedule 5A in relation to financial capacity.
For the above reasons, the applicant has given evidence in accordance with the applicable Schedule 5A requirements, and therefore satisfies cl.572.223(2)(a).
CONCLUSION
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.
Mary-Ann Cooper

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.
SCHEDULE 5A — EVIDENTIARY REQUIREMENTS FOR STUDENT VISAS
Part 4 - Subclass 572 (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 foreign 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;
[(ii) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(5) - LEGEND note]
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 3944

18 December 2015

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