1509162 (Migration)

[2015] AATA 3946

1509162 (Migration) [2015] AATA 3946 (21 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Narmaya Thapa
Mr Madan Thapa
Ms Miensy Thapa

CASE NUMBER:  1509162

DIBP REFERENCE(S):  BCC2015/1379427

MEMBER:Gabrielle Cullen

DATE:21 December 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 21 December 2015 at 11:03am

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 23 June 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 13 May 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. 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 Bachelor of Business (Accounting). 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 she did not meet the financial requirements as required by cl.573.223 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 14 December 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. It discussed with her whether she had complete 75% of her current course and requested she provide evidence to support this. She was given until COB on 15 December 2015 to provide the additional information.

5. The applicant was represented by a registered migration agent and he attended the hearing.

6. The applicant has provided the following relevant evidence to support her claims.

   ·Updated CoE indicating the applicant is studying a Bachelor of Business (Accounting) from 16 March 2015 to 11 March 2016.

   ·Letter from King’s Own Institute dated 15 December 2016 indicating the application has completed 18 out of 24 subjects required to complete the requirements of the Bachelor of Business (Accounting). Also included were her academic results.

   ·Evidence of money transfers from Keshar Bahadur Ale to the applicant in the sums of $4000 on 30 October 2015, and $4000 on 17 November 2015.

   ·The applicant’s Commonwealth Bank Account confirming receipt of the above-mentioned money transfers.

   ·Evidence the applicant paid $3000 in fees on 6 November 2015, and $3000 in pre-paid fees.

   ·Letter from the Nabil Bank indicating Keshar Bahadur Ale holds 2,802,000 Nepalese Rupees as at 22 November 2015.

   ·Letter from Bardan Saving and Credit Cooperative indicating that Mr Keshar Bahadur Al held 528,858.16 as at 20 November 2015 and that on 17 May 2015 he held 3,249,924 until transferred on 20 November 2015.

   ·IELTS tests dated 25 May 2014 and 22 July 2015 both indicating an overall score of 6.0.

   ·Confirmation of Health Cover from 10 June 2015 to 11 May 2015 with NIB.

   ·Certificates relating to completion of courses, including an Advanced Diploma of Hairdressing Salon Management, Certificate IV in Hairdressing and  Certificate III in Hairdressing.

   ·Student Financial Support Statement from Keshar Bahadur Ale indicating he will provide financial support for the applicant’s studies in Australia, including living, course and travel expenses.

   ·Letter relating to the income source of Keshar Bahadur Ale, indicating an income of 5,500,000 per annum from the Office of Banganga Municipality.

   ·Relationship Certificate indicating Keshar Bahadur Ale is the father of the applicant.

   ·Submission from the applicant’s representative dated 13 December 2015.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In the present case, as the applicant currently is enrolled in a Bachelor of Business (Accounting) 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.

9. 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.

10. 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?

11. 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.

12. 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: IMMI 14/014, 1 July 2014.  In this case, the highest assessment level to which the applicant is subject is assessment level 3.

13. The evidentiary requirements for this assessment level for Subclass 573 are set out in Schedule 5A.

    English language proficiency – clause 5A507

14. The evidence indicates the applicant achieved an overall band score of 6.0 in an IELTS test taken on 25 July 2014. The Tribunal is satisfied that less than two years before the date of the application the applicant achieved in an IELTS test an overall band score of at least 5.5.

15. The applicant therefore meets clause 5A407(a) and therefore clause 5A407.

    Other requirements- Clause 5A509

16. 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 an Advanced Diploma of Accounting. 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

17. 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’

18. 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.

19. In this case the first 12 months begins on the expected date of visa grant, which is approximately 11 January 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.

20. The applicant’s principal course, the Bachelor of Business (Accounting) has a proposed end date of 11 March 2016. Adding a month to depart to the proposed end date, this is a period of 3 months.

    Course fees

21. ‘Course fees’ are defined in Clause 5A101. Course fees are $10,000 and the evidence indicates she has paid $6,000.

22. The Tribunal therefore finds the applicant’s course fees that she still owes for the remaining period is $4,000.

    Living costs

23. ‘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 3 months, the Tribunal finds the living costs for the applicant will be $4,652, for her husband (at 35% of the basic rate), $1,628 and for her child (at 20% of the basic rate) $931. The total livivng expenses are $7,211.

    Travel costs

24. ‘Travel costs’ are defined in Clause 5A101. The applicant’s home country is Nepal. The cost for one economy one way ticket from Sydney to Nepal varies but is approximately $900 and for three people would amount to $2700.

    Total costs

25. 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 $4,000

    Living costs  $7 211

    Travel costs  $ 2 700

    Total  $13 911

26. The applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $13 911.

    Funds from an acceptable source

27. ‘Funds from an acceptable source’ is defined in subclause 5A508(2).

28. As the evidence indicates that the applicant has completed 75% of the course, she is required to show a money deposit held by an acceptable individual.

29. 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. 

30. In this regard the applicant has provided evidence of funds in the name of Keshar Bahadur Ale with Nabil Bank in the sum of 2,802,000 Nepalese Rupee, equivalent to $38,119A ( These funds are more than the required amount to meet course fees, living expenses and travel costs as outlined above.

31. 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 Nabil Bank is an acceptable financial institution (see The Tribunal accepts it is a ‘financial institution’ for the purpose of clause 5A101.

32. The Tribunal finds that the applicant’s father is an acceptable individual and notes she has provided evidence that he is her father. Evidence from the Student Financial Support Statement provided to the Tribunal indicates that the funds are for the purpose to support the applicant’s study. 

33. The Tribunal is therefore satisfied that the applicant has provided evidence of a money deposit held by an acceptable individual that is 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).

34. 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 father indicating the applicant has access to the funds. The applicant therefore meets cl.5A508(1)(aa). 

35. The applicant must also show that the regular income of any individual providing the funds to her is sufficient to accumulate the level of funding being provided to that individual. The Tribunal accepts on the evidence before it, as outlined above, that the applicant’s father has a regular income to accumulate to the level of funding being provided to the applicant. The applicant therefore meets cl.5A508 (1)(c).

36. In this case cl.5A508 (1A) does not apply to the applicant.

37. 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

38. 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)

39. 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.

40. The applicant has provided evidence of two recent transfers of funds from her father, each to the value of $4000. The Student Financial Support Statement signed by the applicant’s father also indicates that the applicant will have access to the funds.

41. 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

42. 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

43. 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.