1509760 (Migration)

[2016] AATA 3464

1509760 (Migration) [2016] AATA 3464 (7 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Charles Udo Egwurugwu

CASE NUMBER:  1509760

DIBP REFERENCE(S):  BCC2015/1218355

MEMBER:Antonio Dronjic

DATE:7 March 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.

Statement made on 07 March 2016 at 1:07pm

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

2. The applicant applied for the visa on 26 April 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).

3. In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in Diploma of Automotive Technology. The visa was refused because the applicant did not provide the evidence required to demonstrate that he was a genuine student as required by cl.572.223 of Schedule 2 to the Regulations. In particular, the delegate was not satisfied that the funds are held by an acceptable individual.

4. The applicant lodged the review application with this Tribunal on 20 July 2015. With the application they submitted a copy of the primary decision record.

5. On 30 July 2015, the applicant’s representative submitted the following documents:

   ·First Bank Statement from the account held by Egwurugwu Uzoma Sabinus (the applicant’s brother) evidencing the transactions from 10 March 2015 to 28 April 2015 and available balance as of 29 April 2015 being 28,017,233 NGN (approximately AUD195,875);

   ·Affidavit of financial support provided by Mr Egwurugwu Uzoma Sabinus dated 13 July 2015;

   ·Evidence of relationship between the applicant and his brother;

   ·Bank Statement from the account held by the applicant’s uncle, Mr Bernard Anosike Nwachukwu at Diamond Bank;

   ·Affidavit of financial support provided by Mr Bernard Anosike Nwachukwu dated 16 July 2015;

   ·COE for Certificate III in Light Vehicle Mechanical Technology, stating the course commencement day to be on 8 July 2015 and the course completion date on 24 June 2016 and evidencing the pre-payment of $7,545 and total course fees of $15,090;

   ·Statement from Zenith Bank (April to June 2015) evidencing transactions and balance on the account held by Vinctech Power Limited;

   ·Copy certificate of incorporation for Vinctech Power Limited;

   ·Affidavit of financial support provided by Ms Pamela Emenogu dated 21 July 2015; stating that the company supports the applicant and that the applicant has full access to company funds;

   ·Applicant’s Statutory Declaration dated 24 July 2015 stating that his brother will pay his tuition fees; that he is the owner of Vinctech Power Limited and will have access to company funds;

   ·COE for Certificate IV in Automotive Mechanical Diagnosis, stating the course commencement day to be on 5 July 2016 and the course completion date on 21 December 2016; and stating the course fees to be $7,545;

   ·COE for Diploma of Automotive Technology, stating the course commencement day to be on 30 January 2017 and the course completion date on 30 June 2017 and stating the course fees to be $7,545;

   ·Transcript of Results related to Diploma of Engineering Technology issued by the Box Hill Institute on 4 May 2015; and

   ·Legal submission dated 28 July 2015; stating that the applicant owns a company in Nigeria (Vinctech Power Limited) and will have access to company funds and that the applicant has completed a Diploma in Engineering Technology.

6. On 11 January 2016 the Tribunal invited the applicant to attend the hearing on 4 February 2016. In addition, the tribunal invited the applicant to provide:

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

   ·Documents that show the applicant’s past studies in Australia, including copies of all 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 your enrolment/s and any documentary evidence relevant to your explanation;

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

7. On 27 January 2016, the applicant’s representative submitted the following relevant documents:

   ·Statement of results issued by the Box Hill Institute in relation to Certificate III in Light Vehicle Mechanical Technology course;

   ·Receipt issued by the Box Hill Institute for payment of $8,054 for semester one of Certificate III in Light Vehicle Mechanical Technology course;

   ·Letter from the Box Hill Institute dated 21 January 2016 confirming that the applicant commenced Certificate III in Light Vehicle Mechanical Technology course in July 2015 and is expected to complete the course in June 2016;

   ·Letter from Hawthorn Automotive Improvements dated 21 January 2016 evidencing that the applicant undertook voluntary apprenticeship at this organisation;

   ·Statement from Zenith Bank (October 2015 – January 2016) evidencing transactions and balance on the account held by Vinctech Power Limited;

   ·Evidence that the applicant is the sole director of the Vinctech Power Limited;

   ·The First Bank Statement from the account held by Egwurugwu Uzoma Sabinus (the applicant’s brother) evidencing the transactions from 31 August 2015 to 12 January 2016 and available balance as of 13 January 2016 being 2,045,474 NGN (approximately AUD14,474); and

   ·Copy Diploma of Engineering Technology awarded to the applicant on 29 November 2015.

8. The applicant appeared before the Tribunal on 4 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Igbo and English languages. The applicant was represented in relation to the review by his registered migration agent.

9. The applicant is 46 years of age, Nigerian national. He is married and has 4 children. Two of his children are of school age. Neither his wife nor his children are included in the visa application.

10. At the commencement of the hearing I indicated to the applicant that he has now provided evidence of relationship between himself and his brother who is providing financial support for his stay and study in Australia. I further explained to the applicant, that if he intends to rely on the money deposit held by his brother, he is required to provide evidence that the sufficient funds were held at the bank account in the period of three months before visa application. He is also required to provide evidence that his brother has regular income that is sufficient to generate these funds.

11. I noted that his brother’s bank account statements are for the periods from 10 March 2015 to 28 April 2015 and 31 August 2015 to 12 January 2016. As he lodged the visa application on 26 April 2015, he is required to provide evidence that sufficient funds were held on his brother’s account as of 26 January 2015.

12. I explained that his uncle is not considered to be an acceptable individual as he lives in Nigeria and is not permanent resident or citizen of Australia. Accordingly, I explained that the applicant cannot rely on financial support from his uncle.

13. I also note that the applicant provided statements from the bank account held by his company in Nigeria. I explained that he cannot rely on these funds as they are owned by separate legal entity. I indicated that the company’s money is not acceptable source of funds unless a financial support is received from a company that conducts commercial activities outside Nigeria and employs the applicant in a role in relation to which the applicant’s principal course is of direct relevance.

14. He stated that his wife is a company director and when he gives her instruction she transfers the money to him. He reiterated that he has access to the funds held on the company’s bank account.

15. I noted that according to his brother’s bank statements, the available balance as of 13 January 2016 was 2,045,474 NGN (approximately AUD14, 474) and that it appears that this amount will not be sufficient.

16. We discussed the financial requirements of Schedule 5A. The costs are calculated as follows:

    Remaining course fees             $15,090

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

    Secondary applicant’s living cost – wife   $6,514

    Secondary applicant’s living cost – 4 children  $12,092

    School cost for two school aged children   $16,000

    Travel cost  $1,200

    Total   $69,510

17. The applicant stated that on 22 January 2016 he paid the second instalment for Certificate III. Accordingly, the amount of $7545 should be deducted from the above amount. I accepted that the applicant provided evidence of this payment (Tribunal folio 161). Accordingly the total amount required is $61,965. I again requested documentary evidence that will show that this amount was held on his brother’s account three months prior to his visa application as well as evidence of his brother’s regular income which must be sufficient to generate these funds.

18. I explained to the applicant the ‘3 months saving’ requirement in Schedule 5A which applies to his application. Given the applicant applied for the visa on 26 April 2015, I identified the 3 months period to be between 26 January 2015 and 26 April 2015.

19. The applicant has undertaken to provide evidence that the sufficient funds were held at his brother’s bank account during the period of three months before visa application (as of 26 January 2015) and evidence of his brother’s regular income that is sufficient to generate these funds. I granted the applicant additional time until 18 February 2016 to do so.

20. The applicant stated that he has bank account in Australia. I asked how the money is transferred from Nigeria to his bank account in Australia. The applicant stated that he gets money from members of Nigerian Society of Victoria who have projects in Nigeria.

21. He stated that it is difficult to transfer money from Nigeria’s bank account to Australia because of very high transfer charges. That is why the applicant takes money from members of Nigerian Society of Victoria who have projects in Nigeria and pays them money back in Nigeria. I indicated that I have concerns whether he has access to funds declared in accordance with the Schedule 5A requirements. I requested that the applicant provide documentary evidence that declared funds are still available and that the applicant has access to these funds.  I asked the applicant’s ANZ bank statements from January 2015 and the current bank statement. I granted the applicant additional time until 18 February 2016 to provide the requested documents.

22. On 17 February 2016, the applicant’s representative submitted the following documents:

    ·A copy letter from Mr Okoronkwo, Commercial Manager of Nigeroan Bottling Company dated 20 November 2009 stating that Kellyvianca Nigeria Ltd is the sole distributor in Nigerian bottling company depot Aba Abia State and that Egwurugwu Uzoma Sabinus is the director of this company;

    ·The bank statement from the First Bank related to the account held by Egwurugwu Uzoma Sabinus (the applicant’s brother) evidencing the transactions from 20 January 2015 to 31 August 2015;

    ·Statement of the Account held by the applicant at ANZ Bank in Australia evidencing transactions from 23 December 2014 to 21 August 2015; and

    ·Submissions stating that the applicant’s brother will start paying the applicant’s school fees directly, given the ban from Nigerian government to withdraw the money from overseas.

23. On 29 February 2016, the Tribunal wrote to the applicant noting that he has failed to provide evidence of his brother’s regular income that is sufficient to generate the funds declared. The Tribunal requested the following information:

    ·Does Vinctech Power Limited conduct commercial activities outside Nigeria;

    ·Is applicant employed by the Vinctech Power Limited;

    ·What was his position in the business; and

    ·How is the current principal course (Diploma of Automotive Technology) relevant to his employment.

24. The Tribunal requested that the applicant provide employment agreement and pay slips as evidence of his employment with Vinctech Power Limited and granted the applicant additional time to submit document until 4 March 2016.

25. On 2 March 2016, the applicant’s representative submitted the following documents:

    ·Submissions stating that the applicant is both Managing Director and Service Engineer of Vinctech Power Limited and that the applicant’s company in Nigeria deals with maintenance of industrial machines.

    ·Copy reference letter from Vinctech Power Limited dated 7 February 2014 stating that the applicant is both Managing Director and Service Engineer of Vinctech Power Limited and receives a salary of NGN1, 080,000 per year;

    ·Copy of the applicant’s pay slips from February to May 2014; and

    ·Certificate of incorporation of Vinctech Power Limited dated 4 August 2009.

26. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. In the present case, as the applicant currently is enrolled in Diploma of Automotive Technology as his principal course, the subclass that may be granted is Subclass 572.

28. He is currently undertaking a Certificate III in Light Vehicle Mechanical Technology course and has also presented COE’s for Certificate IV in Automotive Mechanical Diagnosis and Diploma of Automotive Technology.

29. 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.

30. 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.

31. 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?

32. 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.

33. In this case, the applicant holds a passport of Nigeria.  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. 

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

    Financial capacity

35. In summary, the applicant must demonstrate that he has funds from an acceptable source that are sufficient to meet course fees, living costs and school costs (if applicable) for the first 12 months from when the applicant might be expected to be granted the visa, and for his travel costs.

36. These costs are calculated as follows:

    Remaining course fees             $7,545

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

    Secondary applicant’s living cost – wife   $6,514

    Secondary applicant’s living cost – 4 children  $12,092

    School cost for two school aged children   $16,000

    Travel cost  $1,200

    Total   $61,965

37. Funds from an acceptable source are defined in cl.5A408(2)

38. There is no evidence or submissions that the applicant is funded by a government of her home country or a government in Australia. There is also no evidence or submissions that the applicant has successfully completed at least 75% of her principal course and the certificates of enrolment do not support such a proposition.

39. In his evidence, the applicant stated that he is the owner and a Managing Director of Vinctech Power Limited, a company that is registered and operating in Nigeria. He provided evidence of funds held at the company’s bank account and claimed that that he has access to these funds.

40. During the course of the hearing I explained to the applicant that he cannot rely on these funds as they are owned by separate legal entity. I indicated that the company’s money is not acceptable source of funds unless a financial support is received from a company that conducts commercial activities outside Nigeria and employs the applicant in a role in relation to which the applicant’s principal course is of direct relevance.

41. I considered whether the applicant receives a financial support from a corporation that     conducts commercial activities outside the country in which it is based and employs the applicant in a role in relation to which the applicant's principal course is of direct relevance.

42. The financial support is defined in cl 5A408(2) to be either a  scholarship or a waiver of the applicant’s course fees carried out in the specific circumstances. There is no evidence before me that the applicant is awarded a scholarship or that his course fees are waived. In addition, there is no evidence that the applicant’s company conducts commercial activities outside Nigeria. Accordingly, I am not satisfied that the funds held on Vinctech Power Limited account are funds from an acceptable source for the purposes of cl. 5A408(2)(d)(iv).

1. The applicant also provided evidence that his uncle from Nigeria will provide necessary funds. Pursuant to 5A101 Definitions, an acceptable individual means one or more of the following:

   (a)    the applicant;

   (b)    the applicant’s spouse or de facto partner;

   (c)    a parent of the applicant;

   (d)    a grandparent of the applicant;

   (e)    a brother or sister of the applicant;

   (f)    an uncle or aunt of the applicant who is:

   (i)    an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (ii)    usually resident in Australia.

2. In his evidence, the applicant confirmed that his uncle, who is providing necessary funds, is not an Australian Citizen or permanent resident or an Eligible New Zealand Citizen. Pursuant to 5A101 Definitions, he is therefore not considered to be an acceptable individual.

3. Finally, the applicant provided evidence that his brother from Nigeria will provide necessary funds. He provided several bank statements held by his brother at First Bank of Nigeria.

4. During the course of the hearing I explained to the applicant that these funds (equivalent of AUD61, 965) must have been held on his brother’s account for the period of at least 3 months prior to the visa application. According to the bank statements provided by the applicant, the balance on his brother’s account held at the First Bank, as of 26 January 2015 (three months before the visa application) was NGN 6,139,318 (approximately AUD42, 597) which is less that the amount of AUD61, 965 required.

5. In addition, during the course of the hearing and in my post hearing correspondence I requested documentary evidence of the applicant’s brother’s regular income that is sufficient to generate these funds. The applicant provided a letter from Mr Okoronkwo, Commercial Manager of Nigeroan Bottling Company dated 20 November 2009 as evidence that Egwurugwu Uzoma Sabinus (the applicant’s brother) is the director of this company. However, no evidence related to his income was provided to the Tribunal.

6. I am not satisfied that the applicant has provided evidence which could be taken to show the regular income of the person providing the funds was sufficient to accumulate the funds being provided. This is a crucial requirement set out in Schedule 5A for the purposes of cl.572.223.

7. The applicant has not given evidence in accordance with the applicable Schedule 5A requirements and therefore does not satisfy cl.572.223(2)(a). The above discussion of the evidence and the review indicates that the Tribunal could not have done more than it did to afford the applicant the opportunity to succeed at review. On the evidence provided, it has no alternative but to affirm the decision under review.

8. For these reasons, the Tribunal finds that criteria for the grant of a Subclass 572 visa are not met. As there is no evidence the applicant is eligible to be granted a student visa of another subclass, the decision under review must be affirmed.

   DECISION

9. The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.

   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.