1507232 (Migration)
[2015] AATA 3726
•25 November 2015
1507232 (Migration) [2015] AATA 3726 (25 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mrs Dalvir Kaur -
Mr Satnam Ram -
Mr Manav RalhCASE NUMBER: 1507232
DIBP REFERENCE(S): BCC2015/827934
MEMBER:Gabrielle Cullen
DATE:25 November 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); and
·cl.573.223(2)(c) of Schedule 2 to the Regulations.
Statement made on 25 November 2015 at 2:00pm
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 6 May 2015 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 13 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).
In the present case, the delegate assessed the first named applicant (the applicant) against the criteria for a Subclass 573 visa on the basis of enrolment in a Master of Business Administration. The visa was refused as the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student as he did not meet the financial requirements as required by cl.573.223 of Schedule 2 to the Regulations. In particular the delegate was concerned that the source of the funds, Ms Rakesh Kakkar was not an acceptable individual.
The applicant appeared before the Tribunal on 9 November 2015 to give evidence and present arguments. The Tribunal discussed with the applicant the evidence she is required to provide to meet the schedule 5A requirements.
The applicant has provided the following relevant evidence to support her claims.
·Updated CoE indicating the applicant is studying a Master of Business Administration from 9 November 2015 to 31 March 2016.
·Certificate indicating the applicant completed a Master of IT on 28 April 2012.
·Letter from Holmes Institute indicating the applicant has completed 75% of her course and an academic record as to the Master of Business Administration
·Letter from Commonwealth Bank indicating as at 20 November 2015 she has $13,860.03 in her own account, held with her husband.
·Student Financial Support Statement from the applicant’s sister, Nirmal Devi dated 20 November 2015.
·Passport of the applicant’s sister.
·Punjab Bank statement in the name of the applicant’s sister, Nirmal Devi, indicating she holds 3,12,125.98 rupees as at 19 November 2015.
·Submission from the applicant’s representative dated 7 November 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 Master of Business Administration by coursework as her principal course, the subclass that may be granted is Subclass 573. 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 573, this requirement is contained in cl.573.223, which is extracted in the attachment to this decision.
The requirements of cl.573.223 differ depending upon whether or not the applicant is 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, 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.
The applicant in this case is not an eligible higher degree student with a corresponding COE. 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?
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 (being 1, 2, 3, 4, or 5) 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 two 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 573 (the subclass for the applicant’s principal course) is assessment level 3: IMMI 14/014, 1 July 2014. 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 573 are set out in Schedule 5A.
English language proficiency – clause 5A507
The evidence indicates the applicant began the Masters of Business Administration on 12 November 2012 concluding on 1 March 2013 and then studied it again from 15 July 2013 to 25 October 2014 and in that period completed 75% of the course. Movement records indicate she was the holder of a subclass 573 visa during this period.
The Tribunal therefore accepts that as the holder of a student visa the applicant has successfully completed a substantial part of a course that was conducted in English and leading to a qualification from the AQF at the Certificate IV or higher. It finds she meets clause 5A507(d)(iii) and therefore clause 5A507.
Other requirements- Clause 5A509
Clause 5A509 to be met requires that the applicant give evidence that she has successfully completed secondary schooling to the year 12 level (or equivalent). The applicant has previously completed a Master of Information Technology. As the Department’s guidelines state that ‘under policy, a Certificate III awarded under the AQF is considered equivalent to Year 11 and a Certificate IV is considered equivalent to Year 12’, the applicant therefore meets cl.5A509(a) and in turn meets clause 5A509.
Financial capacity requirements-clause 5A508
Clause 5A508 requires the applicant 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 costs are not relevant in this case as the applicant’s child is not of school age.
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 is approximately 31 December 2015. 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 principal course, the Master of Business Administration, has a proposed end date of 31 March 2016. Adding a month to depart to the proposed end date, this is a period of 4 months.
Course fees
‘Course fees’ are defined in Clause 5A101. Course fees are $5625 and the evidence from the applicant is that she has pre-paid the $1 800 for this course.
The Tribunal therefore finds the applicant’s course fees that she still owes for the remaining period is $3 825.
Living costs
‘Living costs’ are $18 610 per year for a single person with no dependent children (subclause 5A104(1)). This is the ‘basic rate’. As the Tribunal has determined the relevant period to be 4 months, the Tribunal finds the living costs for the applicant will be $6,203, for her husband (at 35% of the basic rate), $2171 and for her child (at 20% of the basic rate) $1240. The total livivng expenses are $9 614,.
Travel costs
‘Travel costs’ are defined in Clause 5A101. The applicant’s home country is India. The cost for one economy one way ticket from Sydney to India varies but is approximately $700 and for three people would amount to $2100.
Total costs
In accordance with clause 5A508, 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 $3 825
Living costs $9 614
Travel costs $2 100
Total $15 539
The applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $15 539.
Funds from an acceptable source
‘Funds from an acceptable source’ is defined in subclause 5A508(2).
As the applicant has completed 75% of the course, she is required to show a money deposit held by an acceptable individual.
A money deposit is defined in cl. 5A101 to mean a money deposit with a financial institution.
‘Financial institutution’ is defined in clause 5A101 as:
financial institution
means a body corporate that, as part of its normal activities:
(a) takes money on deposit and makes advances of money; and
(b) does so under a regulatory regime, governed by the central bank (or its equivalent) of the country in which it operates, that the Minister is satisfied provides effective prudential assurance.
In this regard the applicant has provided evidence of funds with the Commonwealth Bank in the sum of $13,869.03 in her and her husband’s name and evidence of funds held by her sister in the sum of 3,12,125.98 rupees, being equivalent to $6478A ( with Punjab National Bank. Together these funds amount to $20,347 and are more than the required amount to meet course fees, living expenses and travel costs as outlined above.
The Tribunal notes that Departmental policy PAM3 Schedule 5A Financial Capacity at 62.4 states that a list of acceptable financial institutions is maintained on the Australia Embassy’s website. This provides that the Punjab National Bank of India is an acceptable financial institution (see The Tribunal accepts it is a ‘financial institution’ for the purpose of clause 5A101.
The Tribunal finds that the applicant’s sister is an acceptable individual, as is the applicant. Evidence from the Student Support Statement provided to the Tribunal indicates that the funds are for the purpose to support the applicant’s study.
The Tribunal is therefore satisfied that the applicant has provided evidence of a money deposit held by an acceptable individual that are sufficient to meet her expenses for course fees, living costs and travel costs for the first 12 months. The applicant therefore meets cl.5A508 (1)(a) and cl.5A508(1)(b).
The applicant has provided the Tribunal a declaration in the visa application stating that she has access to funds from an acceptable source that are sufficient to meet her costs for the remainder of her stay in Australia. Also provided is a student support statement from the applicant’s sister indicating the applicant has access to the funds. The applicant obviously has access to the funds in her name. The applicant therefore meets cl.5A508(1)(aa).
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. The Tribunal accepts that the applicant and her sister have a regular income to accumulate to the level of funding being provided to the applicant.
On the basis of this evidence, the Tribunal is satisfied that the regular income of the applicant and her sister 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.5A508 (1)(c).
In this case cl.5A508 (1A) does not apply to the applicant.
The Tribunal is therefore satisfied that the applicant meets all elements of clause 5A508 of Schedule 5A in relation to financial capacity.
Conclusion – Schedule 5A
On the basis of the above findings, the Tribunal finds that the applicant has given evidence, in accordance with the requirements in Schedule 5A for Subclass 573 and Assessment Level 3, the highest assessment level for the applicant. Accordingly, the applicant satisfies the requirements of cl.573.223(2)(a).
Access to funds – cl.573.223(2)(c)
The Tribunal must also be satisfied that, while holding the visa, the applicant will have access to the funds demonstrated or declared in accordance with the Schedule 5A requirements relating to financial capacity.
The Tribunal accepts that the applicant will be able to access her own bank account from where the vast proportion of the funds will come. With regard to the approximately $2,000 from her sister it accepts the evidence that she has access to these funds.
On the evidence before it, the Tribunal is prepared to accept that, while holding the visa, the applicant will have access to the funds demonstrated or declared in accordance with the Schedule 5A requirements relating to financial capacity. The applicant therefore meets cl.573.223(2)(c).
CONCLUSIONS
As the Tribunal has found the applicant meets the requirements of cl.573.223(2)(a) and (c) it will remit the matter to the delegate for reconsideration.
DECISION
The Tribunal remits the application for Student (Temporary) (Class TU) visa 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) and
·cl.573.223(2)(c) of Schedule 2 to the Regulations.
Gabrielle Cullen
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 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.
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