1511562 (Migration)

[2016] AATA 3091

1511562 (Migration) [2016] AATA 3091 (13 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kanwaldeep Kaur Khosa
Mr Satnam Singh

CASE NUMBER:  1511562

DIBP REFERENCE(S):  BCC2015/1581034

MEMBER:Adrian Ho

DATE:13 January 2016

PLACE OF DECISION:  Melbourne

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 572 Vocational Education and Training visa:

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

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

Statement made on 13 January 2016 at 5:44pm

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 20 August 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 2 June 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 first named applicant (the applicant) against the criteria for a Subclass 572 visa on the basis of enrolment in VET sector courses. The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.572.223 of Schedule 2 to the Regulations.

4. Mrs Khosa (the applicant) appeared before the Tribunal on 13 January 2016 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case, as the applicant has current enrolment in a VET sector 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.

8. 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.

9. On the evidence before the Tribunal, the applicant in this case is not and has not 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?

10. 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.

11. In this case, the applicant holds a passport of India.  The assessment level specified in the relevant instrument for a holder of such a passport for Subclass 572 (the subclass for the applicant’s principal course) is assessment level 3, which is also the highest assessment level to which the applicant is subject.

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

    English language proficiency

13. The applicant has provided to the tribunal evidence of complete of a CRICOS-registered diploma of business in 2014 in the two years before she applied for the visa.

14. The applicant has given evidence in accordance with Schedule 5A407. 

    Financial capacity

15. The applicant has provided fixed deposit receipts and renewal letters in the name of Baldev Singh, who on the basis of her passport, the tribunal accepts is her father, an acceptable individual. 

16. The receipts and renewal letters indicate that the applicant’s father has held at least the following amounts from 2014 and through 2015 and through the three month period leading up to the visa application date:

    a.In account ending with 85182: 95000 INR

    b.In account ending with 23532: 410000 INR

    c.In account ending with 21458: 300000 INR,

    for a total of 805000 INR.

17. The tribunal calculates that the period beginning when the visa is expected to be granted (around one month from the date of this decision) and ending on the last day of proposed stay (around one month after the end of the proposed course of study in August 2016) to be 6 months.  That is, in the circumstances of this case, the “first 12 months” as defined in Schedule 5A Item 5A101 is 6 months (the period).

18. The tribunal finds that taking into account living costs for the period, outstanding course fees for the period, and return travel costs, the applicant must provide evidence of having AUD 19162 in funds, or around 804000 Rupees. 

19. The funds available on deposit exceed the amount of funds that must be shown.

    The bank loans and access

20. When she applied for the visa, the applicant had to show financial capacity over a 12 month period and she submitted evidence of fixed deposit along with evidence of a bank loan in her father’s name.

21. The amounts on fixed deposit were insufficient to meet the amount of funds required by Schedule 5A.

22. She was refused the visa because the Department initiated an investigation which led to it being discovered that 1115000 Rupees was received by her father from a Mr Singh around one week after the Department asked her to provide financial information and around four days before her father obtained the loan of 1 million Rupees which she gave to the Department.  Information uncovered by the High Commission in India indicated that on the day the loan was issued 300000 Rupees was sent to NK Commission agents and the next day 700000 was sent to a Ms Kaur, and that there was no appreciable balance remaining on the loan which could be drawn upon.

23. Despite her father having provided a fresh loan, the Department was not satisfied that the applicant would have access to the funds under the loan or on the deposit which secured the loan.

24. In essence the Department took the view that the applicant’s father had borrowed 1 million Rupees from the commission agent and from individuals, and was repaying that money very promptly after the loan letter was issued.

25. The tribunal agrees.  As pointed out to the applicant at hearing, the tribunal considers her explanation too coincidental to represent the true state of affairs.  Her explanation at hearing is that Mr Singh had owed her father 1115000 Rupees.  On her evidence, and luckily for her, that money was due back to her father on 2 July 2015, a week after the Department asked her for evidence of financial capacity.  Four days later her father had the loan in place, and on her explanation, on the very day the loan letter was issued, his commission agent, to whom he sells farm crops, was in urgent need of money and so he, naively, took 300000 Rupees and lent it to the agent.  On the very next day, Ms Kaur, said to be a relative, was in urgent need of money and her father lent her the remaining 700000 Rupees under the loan.

26. As suggested to the applicant, the tribunal finds it far more convincing that the money was borrowed by her father around a week after she was asked to provide evidence of financial capacity, and when the loan was created, her father promptly returned the money so as not to incur unnecessary interest to those who had lent him the money.

27. The applicant has provided no evidence that the individuals to whom money was disbursed or from whom money was received are relatives as claimed, and the tribunal rejects those claims.

28. The tribunal agrees with the conclusion that the applicant did not and does not have access to the funds disclosed under the first or second loan.

29. The tribunal finds that the evidence of fixed deposits above establish that the applicant’s father has had cash deposits of around 805000 Rupees since 2014 and through 2015 and that he borrowed money to establish the loan because the amount of funds to be shown for the visa exceeded the cash that he had on fixed deposit.

30. The fixed deposits were not called into question by the Department.  It was enough for her not to meet the criteria with a finding that she did not have access to the loan money.

31. On the evidence, the tribunal is satisfied that the 805000 Rupees on fixed deposit since 2014 is money owned by the applicant’s father.

32. The tribunal is satisfied that the evidence of his income provided (f.69) reveals incomes sufficient to accumulate the 804000 Rupees that must now be shown.

33. The tribunal emphasises that the applicant has been fortunate in that the tribunal’s review process has meant that at the time of the tribunal’s decision, she only has 6 months of proposed study remaining and therefore the amount of funds that must be shown are now catered for by the fix deposits, without the loans.

34. The criteria only require the tribunal to be satisfied that the applicant will have access to the funds that she is required to declare under Schedule 5A, which now, at the time of the tribunal’s decision, are less than 805000 Rupees.

35. While the tribunal is not satisfied that the applicant had or has access to the funds under the loan, the tribunal is satisfied that the applicant has access to the amounts which must now be shown under Schedule 5A, which are greatly reduced from the time the Department made its decision.

    Other matters

36. Based on secondary school documents and Australia Certificate of Enrolment documents provided to the Department, the tribunal finds the applicant given evidence in accordance with Schedule 5A Item 5A409.

37. 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).

38. For the reasons above, the applicant also meets cl.572.223(2)(c).

    Genuine Temporary Entrant

39. The applicant gave evidence at hearing that she aspired to open a restaurant in India.  Her stated plan was to move on to study a bachelor of business, either in Australia or India, which she claimed was necessary to her restaurant plan.  As suggested to her, given her comprehensive study in business, management and marketing in the VET sector, the tribunal does not consider that she reasonably needs to undertake her second bachelor’s degree in order to attempt her stated plan of opening a restaurant in India.

40. As that course has not yet been proposed, the tribunal has confined itself to the issues decided by the delegate.

41. 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

42. 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 572 Vocational Education and Training visa:

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

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

    Adrian Ho

    
    

    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.