1506195 (Migration)

[2016] AATA 3752

1506195 (Migration) [2016] AATA 3752 (20 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bekani Njolomole

CASE NUMBER:  1506195

DIBP REFERENCE(S):  BCC2015/811571

MEMBER:Antonio Dronjic

DATE:20 April 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 572 Vocational Education and Training visa:

·cl.572.223 (2)(a) of Schedule 2 to the Regulations.

Statement made on 20 April 2016 at 12:10pm

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 6 May 2015 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. Where used in this decision:

   a.COE refers to Certificate of Enrolment in a course of study;

   b.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   c.VET refers to Vocational Education and Training;

   d.A reference such as ‘5Axxx’ refers to the referenced item or clause of Schedule 5A to the Regulations;

   e.The Department refers to the Department of Immigration and Border Protection;

   f.IELTS refers to the International English Language Testing System.

3. The applicant applied for the visa on 12 March 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).

4. In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in Diploma in Hospitality. The visa was refused because the applicant did not provide the evidence required to demonstrate that he is a genuine student as required by cl.572.223 of Schedule 2 to the Regulations.

5. The applicant lodged the review application with this Tribunal on 7 May 2015 and submitted a copy of the primary decision record.

6. On 22 March 2016 the Tribunal invited the applicant to attend a hearing via telephone conferencing on 14 April 2016. In addition, the tribunal invited the applicant to provide:

   ·A copy of the applicant’s current Certificate of Enrolment (COE) as required for the grant of a student visa;

   ·Document/s that shows that the applicant is currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.

   ·Documents that show the applicant’s past studies in Australia, including copies of attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to the applicant’s past or intended studies in Australia;

   ·An explanation of any gaps in the applicant’s enrolment/s and any documentary evidence relevant to the applicant’s explanation;

   ·Documents that demonstrate that the applicant has sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period, including:

   oevidence of fees of current or proposed course/s the applicant has already paid, or still owe for past courses

   oevidence of funds from an acceptable source

   oif the applicant is seeking to rely on a money deposit, the applicant may need to show how long the deposit was held immediately before the date of the visa application

   oif the applicant has a loan secured against a money deposit, evidence of where the money deposit came from, and the loan must still be current

   oevidence of the regular income of any person who is providing funds to the applicant , and their relationship to you

   oevidence that the applicant has genuine access to the funds that he or she declared while the applicant holds a student visa, such as evidence of any money you have received or been given

7. On 1 April 2016, the applicant’s representative submitted the following documents:

   ·Submissions stating that the applicant booked IELTS test for 23 March 2016;

   ·COE’s for Certificate III and IV in Commercial Cookery; and Diploma in Hospitality;

   ·Receipts for payment of course fees;

   ·Copy Diploma in Marketing;

   ·Copy Certificate IV in Marketing;

   ·Evidence of relationship with the person providing financial support to the applicant including the statement from his brother, applicant’s birth certificate and his brother’s birth certificate;

   ·Statement of account held by the applicant’s brother at National Bank of Malawi evidencing the available balance and transactions from 1 December 2015 to 18 March 2016;

   ·Letter from Moda Consulting Group dated 24 March 2016 as evidence of applicant’s brothers’ employment;

   ·IELTS TRF dated 25 May 2013 evidencing the applicant’s overall band score of 6; and

   ·Evidence of completing the equivalent of year 12 by the applicant.

8. The applicant appeared before the Tribunal via telephone conferencing on 14 April 2016 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

9. The applicant is 32 years of age national of Malawi. He first arrived in Australia in July 2013 as a holder of a Student visa subclass 572. In Australia he has completed a Diploma in Marketing which included a Certificate IV in Marketing.

10. I indicated that I had regard to the submissions and documentary evidence submitted by his representative. I explained to the applicant that, based on the evidence provided, I am satisfied that he meets the English language requirement prescribed by the relevant Schedule 5A as he had completed a Diploma in Marketing in June 2014.

11. I further indicated that the financial documents provided indicate that his brother has sufficient funds on his bank account to finance the visa applicant’s stay and study in Australia. I noted that the evidence was provided to the department with the visa application that these funds were held at the bank during the period of three months before the visa application. He has now provided satisfactory evidence of relationship with his brother who is the person providing financial support. The missing documentary evidence is of his brother’s regular income. I explained to the applicant that I must be satisfied that the regular income of his brother is sufficient to accumulate the level of funding being provided. The applicant undertook to provide the requested documentary evidence within one week.

12. On 19 April 2016, the applicant’s representative submitted evidence of the visa applicant’s brothers’ regular income and copy of the IELTS TRF of 2 April 2016 evidencing the applicant’s overall band score of 6.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. In the present case, as the applicant is currently enrolled in Diploma in Hospitality 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.

15. 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.

16. 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?

17. 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.

18. In this case, the applicant holds a passport of Malawi.  The assessment level for a holder of such a passport for Subclass 572 (the subclass for the applicant’s principal course) is assessment level three.

19. The evidentiary requirements for this assessment level for Subclass 572 are set out in Part 4 of Schedule 5A.

    English language proficiency – clause 5A407

20. The evidence indicates the applicant successfully completed Diploma of Marketing in June 2014. As the evidence indicates that less than two years before the date of the application as the holder of a student visa, the applicant successfully completed a substantial part of a course that was conducted in English and leading to a qualification from AQF at the Certificate IV or higher, he meets clause 5A407(d) and therefore clause 5A407.

21. In addition he has provided IELTS TRF dated 2 April 2016 evidencing the applicant’s overall band score of 6.

    Other requirements - Clause 5A409

22. Clause 5A409 requires that he 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. As the applicant has provided evidence of successfully completing Senior Secondary Schooling to year 12, the Tribunal finds he meets clause 5A409.

    Financial capacity requirements - clause 5A408

23. 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’

24. At the hearing, the costs are calculated as follows:

    ·Remaining course fees for Certificate IV             $4,700

    ·Remaining course fees for Diploma of Hospitality   $5,350

    ·Living cost for the applicant for 12 months   $18,610

    ·Travel cost  $1,200

    ·Total  $29,860

25. The applicant agreed with this calculation and stated that the balance on his brother account as of 18 March 2016 is 18,334,457 Malawian Kwacha which is equivalent to AUD35, 256. This amount is sufficient to cover the above calculated costs.

    Funds from an acceptable source

26. ‘Funds from an acceptable source’ is defined in subclause 5A408(2). In this regard the Tribunal accepts the evidence of the applicant that he is the brother of Madalitso Njolomole, the person holding the funds at his bank account. The Tribunal accepts the applicant’s brother is an acceptable individual.

27. With his visa application, the applicant provided a Statement of account held by his brother at National Bank of Malawi evidencing the available balance and transactions from 3 November 2014 to 25 February 2015. The visa application was lodged with the department on 12 March 2015. Based on this evidence, I am satisfied that that the money deposit was held by the applicant’s brother for at least the 3 months immediately before the date of the application.

28. The Tribunal is therefore satisfied that the applicant has funds from an acceptable source that are sufficient to meet his expenses for course fees, living costs and travel costs for the first 12 months. The applicant therefore meets cl.5A408(1)(a) and cl.5A408(1)(b).

29. The applicant has provided the Tribunal a declaration in the 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).  He has also provided a student visa financial support statement signed by his brother indicating that the applicant has access to those funds.

30. 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 applicant provided documentary evidence of his brother’s employment and income. I am satisfied on the evidence that the applicant’s brother has a regular income that is sufficient to accumulate to the level of funding being provided to the applicant. The applicant therefore meets cl.5A408(1)(c).

31. 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).

32. 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

33. 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.

    Antonio Dronjic

    
    

    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.