1506163 (Migration)

[2015] AATA 3426

1506163 (Migration) [2015] AATA 3426 (3 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sushma Shrestha
Mr Arjan Kumar Shrestha
Mr Hridhaan Shrestha

CASE NUMBER:  1506163

DIBP REFERENCE(S):  BCC2015/785911

MEMBER:Susan Pinto

DATE:3 September 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named 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 03 September 2015 at 2:30pm

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 21 April 2015 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 11 March 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).

3. The delegate assessed the first named applicant (the applicant) against the criteria for a Subclass 573 visa on the basis of enrolment in a Bachelor of Accounting at Universal Business School Sydney. The visa was refused because the applicant did not provide the evidence required to demonstrate she is a genuine student as required by cl.573.223 of Schedule 2 to the Regulations.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant is currently enrolled in a Bachelor of Accounting as her principal course, and the relevant subclass is Subclass 573. The issue 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.

6. 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 masters 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.

7. On the evidence before the Tribunal, the applicant is not or has not at any relevant time been 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?

8. 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.

9. In this case, the applicant holds a passport of Nepal. 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. The evidentiary requirements for this assessment level for Subclass 573 are set out in Part 5 of Schedule 5A and are extracted in the attachment to this decision.

10. In support of the application to the Tribunal, the applicant has provided a copy of her current CoE, confirming that she is enrolled in a Bachelor of Accounting with Universal Business School Sydney (UBSS) which commenced on 2 March 2015 and ends on 28 October 2016. Additional documentation in relation to the Schedule 5A requirements was also provided. These are discussed below:

    English language requirements – Clause 5A507

11. The applicant has provided an IELTS certificate for a test undertaken on 12 March 2015. The applicant achieved scores of 7.0 for listening; 7.0 for reading; 5.5 for writing and 7.0 for speaking. Her overall band score was 6.5.

12. The Tribunal finds that the applicant will not undertake an ELICOS course before commencing her course and has achieved in an IELTS test that was taken less than two years before the date of application, an overall band score of at least 6.0. The Tribunal finds, therefore, that the applicant meets cl.5A507.

    Financial capacity requirements – Clause 5A508

13. The applicant is required to give evidence of funds from an acceptable source that are sufficient to meet her course fees and living costs for the first 12 months. School fees are not relevant in this matter because the applicant does not have any school age dependent children. The Tribunal expects that the visa will be granted on 1 October 2015. As the course ends after the 12 month period, the Tribunal finds that the first 12 months is the required period.

14. The applicant has provided a Balance Certificate from the Stariya Saving & Credit Co-operative in the name of Mrs Shyam Kumari Shrestha. It states that as of 30 August 2015 the account had a balance of 186,770.81 Nepalese Rupees ($2,453,64). The same bank account, showing withdrawals of 2,300,000, 500,000, 400,000, 500,000, 400,000 and 400,000 on 18 and 19 August 2014 was also provided. The applicant has stated that this was used as a fixed deposit at the SBI Bank Ltd. The applicant also provided an “Overdraft Against a Fixed Deposit Receipt” from the Nepal SBI Bank in the same name for 4,000,000.000 (4 million) Nepalese Rupees (approximately $54,000.00).

    Course fees

15. The total tuition fees according to the CoE provided by the applicant are $18,326. The applicant provided evidence that she has paid $5,945.75 of the fees. The applicant has, therefore, $12,529 course fees remaining.

    Living Costs

16. The applicant’s living costs for the period are $18,610. The applicant is also required to have funds for additional costs for her spouse (35% of the basic rate) and her son (20% of the basic rate). The additional costs are, $6,513 for her husband’s living costs; and $3,722 for her son’s living costs. The total living costs for the applicant, her husband and child are $28,845.

    Travel Costs

17. Travel costs’, for an applicant, are defined in cl.5A101 to mean the sum of costs for each of the applicant and any family applicant (a) of travelling to Australia if the applicant or family applicant is not in Australia when the application is made; and (b) of returning to the applicant’s home country at the end of his or her stay. The cost of three one way tickets to Nepal varies, but is approximately $3,000.

    Total costs

18. In accordance with cl.5A508, the Tribunal finds that the applicant’s total costs for course fees, living costs and travel costs for the first 12 months are: course fees: $12,529; living costs; $28,845, and travel costs of $3,000. This equates to $44,374.

    Funds from an acceptable individual/source

19. The loan documentation states that the purpose of the loan is for Mrs Shrestha to cover the educational, living, travel and other expenses incurred by her granddaughter during her higher education studies. The applicant has provided a “relationship certificate” confirming that Mrs Shyam Kumari Shrestha is her grandmother. The Tribunal is satisfied that a grandmother is an acceptable individual as defined in cl.5A101. Accordingly, the applicant has provided evidence of a loan from a financial institution made to, and held in the name of an acceptable individual, her grandmother.  Whilst schedule 5A contains no definition of the term ‘loan’, it has been held to encompass a legally enforceable agreement by which a financial institution promises to advance funds to a borrower on condition that the funds advanced be repaid.[1] It is not dependent upon any or all of the funds agreeing to be lent coming into the possession of the borrower, nor is it contingent upon there being a repayment schedule.[2] In this respect, the term ‘loan’ may encompass a range of financial arrangements such as an ‘overdraft’ or ‘line of credit’ as they would both appear to share the same broad characteristics of an enforceable agreement to provide funds on condition of repayment.

    [1] Patel v MIAC (2013) 211 FCR 35 at [19].

    [2] Patel v MIAC (2013) 211 FCR 35 at [19].

20. As indicated above, the applicant’s grandmother has funds of approximately $54,000 and the applicant requires approximately $44,000 to complete her studies in Australia. The Tribunal is satisfied, therefore, that the applicant has funds from an acceptable source that are sufficient to meet her course fees, her living costs, and her travel costs. The Tribunal also finds that the applicant has given a declaration to the Tribunal that she has funds from an acceptable source that are sufficient to meet the remainder of her proposed stay in Australia after the first 12 months.

    The regular income of the individual providing support

21. 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(c). Departmental Policy (PAM3-GenGuide G-Student Visas at 59.2) states that “generally it should be unnecessary to verify the regular income of the individual providing funds if the source of funding is a bank loan, as the bank would have verified the income of the borrower before sanctioning the loan”. The applicant has provided documentation showing that her grandmother has an annual income of 600,000.00 Nepalese Rupees from property ownership. The Tribunal accepts that the applicant has provided evidence her grandmother has a regular income to accumulate the level of funding being provided to the applicant.

22. The Tribunal finds, therefore, that the applicant meets all of the elements of cl.5A508 of Schedule 5A in relation to financial capacity.

    Other requirements – Clause 5A509

23. The applicant has provided evidence that she has completed secondary schooling to the Year 12 level or its equivalent whilst in Nepal and evidence of higher education studies in Nepal. The Tribunal finds, therefore, that the applicant meets the requirements of cl.5A509.

24. 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).

25. 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

26. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

    ·cl.573.223(2)(a) of Schedule 2 to the Regulations.

    Susan Pinto

    
    

    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.

    Division 3 - Requirements for assessment level 3 [LEGEND note: clause 5A507 - clause 5A509]

    Clause 5A507      English language proficiency

    [5A507] (1)      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 6.0 or the required score in an English language proficiency test that is specified in a legislative instrument made by the Minister under clause 5A102;

    ·  [(ii) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(5) - LEGEND note]

    (aa)      the applicant has:

    (i)      achieved, in an IELTS test that was taken less than 2 years before the time of making the application, an Overall Band Score of at least 5.5 or the required score in an English language proficiency test that is specified in a legislative instrument made by the Minister under clause 5A102; and

    ·  [(i) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(5) - LEGEND note]

    (ii)      enrolled in a foundation course before commencing the applicant’s principal course;

    (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 5.0 or the required score in an English language proficiency test that is specified in a legislative instrument made by the Minister under clause 5A102;

    ·  [(ii) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(5) - LEGEND note]

    (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 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.

    ·

    [5A507] (2)      For subclause (1), an applicant is not required to give evidence of English language proficiency if:

    (a)      the application was made outside Australia; and

    (b)      the applicant:

    (i)      provides a certificate of enrolment in a course that has been specified by the Minister in a legislative instrument under subregulation 1.44(2) (the specified course); and

    ·  [(i) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(5) - LEGEND note]

    (ii)      will not undertake any other course before commencing the specified course.

    [(ii) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(5) - LEGEND note]

    Clause 5A508      Financial capacity

    ·

    [5A508] (1)      The applicant must give, in accordance with this clause:

    ·[(1) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]

    ·(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.

    [5A508] (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.

    [5A508] (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;

    (iii)      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) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]

    ·  (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;

    [(b) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]

    ·  (b)      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;

    ·

    [(c) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]

    ·  (c)      a loan from a financial institution made to, and held in the name of, an acceptable individual;

    (d)      a loan from the government of the applicant’s home country;

    (e)      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 5A509      Other requirements

    [5A509]      The applicant must give evidence that:

    (a)      he or she has successfully completed secondary schooling to the year 12 level (or its equivalent); or

    (b)      he or she:

    (i)      has successfully completed secondary schooling to the year 11 level (or its equivalent); and

    (ii)      has successfully completed in Australia a foundation course; or

    (c)      he or she:

    (i)      has successfully completed secondary schooling to the year 11 level (or its equivalent); and

    (ii)      has a certificate of enrolment in a foundation course that is to be undertaken in Australia before commencing the applicant’s principal course; or

    (d)      he or she:

    (i)      has successfully completed secondary schooling to the year 11 level (or its equivalent); and

    (ii)      has 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; or

    (e)      he or she has successfully completed a qualification from the Australian Qualifications Framework at the Certificate IV level or higher in a course that was conducted in Australia; or

    (f)      he or she has a certificate of enrolment in a course that:

    (i)      leads to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; and

    (ii)      is to be undertaken in Australia before commencing the applicant’s principal course; or

    (g)      he or she has successfully completed a qualification from the Australian Qualifications Framework at the Certificate IV level or higher in a course that:

    (i)      is specified by the Minister in an instrument in writing for this subparagraph; and

    (ii)      was conducted outside Australia.