1511738 (Migration)
[2016] AATA 3004
•4 January 2016
1511738 (Migration) [2016] AATA 3004 (4 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Ghassane El Khodr
CASE NUMBER: 1511738
DIBP REFERENCE(S): CLF2015/23922
MEMBER:Sean Baker
DATE:4 January 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 573 Higher Education Sector visa:
·cl.573.223(2)(a) of Schedule 2 to the Regulations.
Statement made on 04 January 2016 at 1:07pm
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 21 June 2013 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 28 April 2011. 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 applicant against the criteria for a Subclass 573 visa. The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.573.223 of Schedule 2 to the Regulations.
For reasons not entirely clear, the Department decided that the applicant should be re-notified of the decision made in 2013 on 24 August 2015.
The applicant was represented in relation to the review by his registered migration agents.
On 21 September 2015 the applicant contacted the Tribunal and requested that a copy of all correspondence sent to his representative also be sent to him. When asked he stated that he still wished to be represented by him and did not wish to remove him as his representative but did not trust him.
On 25 September 2015 the Tribunal wrote to the applicant under cover of a letter to his representative, requesting that he provide a number of documents which were required for the applicant to meet key criterion for the grant of the visa. A copy of this letter, as requested by the applicant, was also sent directly to him. This letter asked for this information by 9 October 2015.
On the same day, 25 September 2015, the applicant, under cover of a letter to his representative, was invited to attend a hearing on 12 October 2015. This email was also sent directly to the applicant, as he had requested.
On 30 September 2015 the applicant contacted the Tribunal to confirm his hearing date, and was told that it was 12 October 2015. On 5 October 2015 the applicant contacted the Tribunal and said that he had been trying to get in touch with his agent as his hearing response was due. He said he had been calling his agent all day and there was no answer. He confirmed he would be attending the hearing. He was asked to submit any submissions as soon as possible. He advised he would bring copies of documents to the hearing.
On 8 October the representative contacted the Tribunal, said he had never received the email, only the request for information, and that he was about to go on holiday. The applicant also contacted the Tribunal on that day to ask what his representative had submitted.
The representative sent a request for postponement on 8 October 2015. On 9 October 2015 this request was refused, on the basis that the invite had been sent to him on 25 September, he had had plenty of time to make arrangements or request an adjournment earlier, there are a number of agents in the practice who could appear instead, the case was not complex, the visa application is very old and I considered that it was in everyone’s interests to resolve the matter as soon as possible.
A further email was sent on 9 October 2015 which included information said to support that the hearing invite was not received, and the agents for the firm were all busy.
On the morning of the hearing, someone from the representative’s office inquired whether a postponement was granted and was told it was not. The Tribunal inquired with the technology section who were able to confirm that the email was delivered and accepted by the mail hosts responsible for the representative’s domain on 25 September 2015. This information was passed on to the representative’s office, along with the evidence of this on the Tribunal file.
Neither the applicant nor his representative attended the hearing. The applicant called later to say that he had been told not to attend by his representative. He was told that his representative requested an adjournment but that this had not been granted.
On the basis of the information before me I find that the applicant had lost his right to a hearing. I have considered whether the evidence before me points to this having occurred because of error on the part of the Tribunal, or fraud or negligence on the part of his representatives, but I do not believe so. The Tribunal complied, as far as I can see, with all of its obligations in sending the letter, and went beyond this in sending a copy to the applicant. The applicant did not attend the hearing. An additional problem is that the applicant and his representative did not respond within time to the request for information under s.359(2). It appears therefore that s.363A precludes the applicant being invited to attend a hearing.
In these circumstances, and pursuant to s.362B and s.363A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. However, in the interests of fairness to the applicant, and given the conduct of his former representative as set out above, the applicant was given further time to provide the documents originally requested in the s.359(2) letter.
The applicant engaged another representative, who sensibly requested further time and clarification from the Tribunal. Following this, and on the date agreed, the new representative provided all of the information originally requested, which has now allowed me to make a positive decision. Were it not for the intervention and actions of the applicant’s new representative, the case may have turned out very differently.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, as the applicant currently is enrolled in a Master of Business Administration course as his 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.
To meet this criterion, the applicant in this case 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’ is 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 Lebanon. 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 11/011. 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 Part 5 of Schedule 5A and are extracted in the attachment to this decision.
English language proficiency
The applicant has provided results of an IELTS test, dated 23 March 2013, which shows that he achieved an overall band score of 6.0. He therefore meets cl.5A507(1)(a) and therefore satisfies the English language proficiency requirement of cl.5A507.
Financial capacity
The applicant has given evidence that he proposes to undertake a course running until 31 December 2016. His tuition fees are $22,500, of which he has paid $4, 000. On the basis that he will remain in Australia until the completion of the course in 13 months’ time, his living costs for himself, his wife and children I calculate as $33, 150, and return tickets to Lebanon for the family are quoted in the most recent submission as $4, 000, which I accept. This totals $55, 650.
To meet this amount, the applicant must demonstrate that he has funds from an acceptable source that are sufficient to meet these costs. The evidence before me does not support a conclusion that the applicant has completed 75% of his principal course.
He has previously provided a letter of sponsorship from his uncle-in-law, Mustafa El Hawli, with bank accounts from a business account. The applicant has also provided a copy of a certificate of title for their house in Australia. The applicant has also provided a letter from the Bank of Beirut, which indicates that the applicant’s father held a facility for an amount of US dollars repayable from May 2011 until April 2013. All of these forms of evidence had issues with them which meant they were not acceptable to prove financial capacity.
However, in the most recent submission, he has provided evidence of a loan from Jammal Trust Bank (Tripoli Branch) granted to Mr Ahmad Othman El Khodr (the applicant’s father) on 1 December 2015 for the amount of 41, 000 USD. As at today’s date, this is calculated as $56, 370.42 AUD.[1]
[1] Xe.com, calculated 4 January 2016.
Also provided was a financial undertaking from the applicant’s father with translation, a civil record for the applicant which confirms that Mr Ahmad Othman El Khodr is his father, registration certificates indicating that the applicant’s father owns two plots of land. There is also evidence in the form of an email from a loans officer of Westpac bank indicating that the applicant himself has an application for a loan with Westpac pending.
On the basis of the evidence before me I find that the loan from the Jammal Trust Bank to Mr Ahmad Othman El Khodr, who I find to be the applicant’s father, satisfies paragraph (c) of the definition of funds from an acceptable source for the purposes of cl.5A508. I find that the applicant’s father is an individual who is providing support to the applicant on the basis of the father’s financial undertaking.
On the basis of the evidence before me, I find that the applicant has funds from an acceptable source that are sufficient to meet the expenses as calculated above, including course fees and living costs, that school fees are not required as I accept the children are too young. I accept that the applicant has declared that he has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay. I accept that the applicant has, as above, evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs.
I do not accept the argument made by the current representative’s submission that evidence of ordinary income is not required in this case. The case of Saji v Minister for Immigration [2015] FCCA 1170 is cited, but this case is authority for the proposition that evidence of income is not required where a loan is made to the applicant her or himself. Having considered the argument I do not accept that Saji has anything to say in relation to the requirement for an individual other than the applicant to provide evidence of income.
However, I have had regard to the evidence before me. This indicates that the applicant’s father held a facility for a significant amount previously, and has been granted the current loan. There is evidence that the applicant’s father owns two decent sized plots of land which are cultivated with beans. I accept, on all of the evidence, that the regular income of the applicant’s father who is providing funds to the applicant is sufficient to accumulate the level of funding being provided by him.
On this basis I find that the applicant satisfies cl.5A508.
Other requirements
The applicant has provided evidence that he successfully completed secondary schooling to the year 12 level or its equivalent in Lebanon, having then gone on to complete a Masters degree in science from the Lebanese University. On this basis I find that the applicant satisfies cl.5A509(a) and therefore cl.5A509.
On the basis of the above, I find that the applicant has given evidence in accordance with the applicable Schedule 5A requirements and therefore satisfies cl.573.223(2)(a)(i).
Remaining requirements of cl.573.223(2)(a).
On the basis of his application for the visa, indicating that he intends to comply with any conditions subject to which the visa is granted, and with no evidence to indicate the contrary, I am satisfied that the applicant is a genuine applicant for entry and stay as a student and therefore satisfies cl.573.223(2)(a)(ii).
On the basis of the evidence before me, including the undertaking from his father, I am 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. The applicant therefore satisfies cl.573.223(2)(a)(iii).
On the basis of the above, the applicant satisfies cl.573.223(2)(a).
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 573 Higher Education Sector visa:
·cl.573.223(2)(a) of Schedule 2 to the Regulations.
Sean Baker
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 the applicant meets the requirements of subclause (2).
(2)An applicant meets the requirements of this subclause if:
(a)for an applicant who is not a person designated under regulation 2.07AO:
(i)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(ii)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(A)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B)any other relevant matter; and
(iii)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; or
(b)for an applicant who is a person designated under regulation 2.07AO ....
Clause 5A507. English language proficiency
(1) The applicant must give evidence that one of the following applies:
(a) the applicant:
(i) will not undertake an ELICOS before commencing his or her principal course; and
(ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 6.0 or the required score in an English language proficiency test that is specified in a Gazette Notice for clause 5A102;
(aa) the applicant has:
(i) achieved, in an IELTS test that was taken less than 2 years before the time of making the application, an Overall Band Score of at least 5.5 or the required score in an English language proficiency test that is specified in a Gazette Notice for clause 5A102; and
(ii) enrolled in a foundation course before commencing the applicant’s principal course;
(b) the applicant:
(i) will undertake an ELICOS of no more than 30 weeks duration before commencing his or her principal course; and
(ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.0 or the required score in an English language proficiency test that is specified in a Gazette Notice for clause 5A102;
(c) the applicant:
(i) is fully funded; and
(ii) has a level of English language proficiency that satisfies his or her proposed education provider; and
(iii) if the applicant is to undertake an ELICOS before commencing his or her principal course — will undertake an ELICOS of no more than 30 weeks duration;
(d) the applicant had, less than 2 years before the date of the application:
(i) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted:
(A) in Australia; and
(B) in English; or
(ii) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that:
(A) is specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English; or
(iii) as the holder of a student visa — successfully completed a substantial part of a course (other than a foundation course) that:
(A) was conducted in English; and
(B) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
(iv) successfully completed a substantial part of a course that:
(A) is specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English; and
(D) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
(v) successfully completed a foundation course that was conducted:
(A) in Australia; and
(B) in English; or
(vi) successfully completed a course in foundation studies that:
(A) is specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English;
(e) the applicant has:
(i) a level of English language proficiency that satisfies the applicant’s proposed education provider; and
(ii) at least 5 years of study in English undertaken in 1 or more of the following countries:
(A) Australia;
(B) Canada;
(C) New Zealand;
(D) South Africa;
(E) the Republic of Ireland;
(F) the United Kingdom;
(G) the United States of America.
(2) For subclause (1), an applicant is not required to give evidence of English language proficiency if:
(a) the application was made outside Australia; and
(b) the applicant:
(i) provides a certificate of enrolment in a course that has been gazetted for subregulation 1.44(2) (the gazetted course); and
(ii) will not undertake any other course before commencing the gazetted course.
Clause 5A508. Financial capacity
(1) The applicant must give, in accordance with this clause:
(a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 24 months:
(i) course fees;
(ii) living costs;
(iii) school costs; and
(aa) a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 24 months; and
(b) evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and
(c) evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.
(1A) If the applicant is:
(a) fully funded; or
(b) an applicant:
(i) who is not funded, wholly or partly, by:
(A) the Commonwealth Government, or the government of a State or Territory; or
(B) the government of a foreign country; or
(C) a multilateral agency; and
(ii) who proposes to undertake a course of study that is, or courses of study that are together, of a duration of less than 12 months; and
(iii) for whom, if applying in Australia, the proposed period of stay will result in the applicant’s total period of lawful stay in Australia being less than 12 months; or
(c) the subject of an arrangement by which the course fees, living costs and travel costs for the primary person’s full period, assessed for the primary person alone, will be met by:
(i) a provincial or state government in a foreign country, with the written support of the government of that country; or
(ii) an organisation specified by the Minister in a Gazette Notice for this paragraph;
the applicant must give evidence that the applicant has access to funds that are sufficient to support each member of the applicant’s family unit who is not a family applicant.
(2) In this clause:
financial support,
from an applicant’s proposed education provider, means:
(a) a scholarship that:
(i) is awarded on the basis of merit and an open selection process; and
(ii) is awarded to a student who is enrolled in a course leading to a Certificate IV qualification or a higher qualification; and
(iii) is awarded to the greater of:
(A) not more than 10% of overseas students in a course intake; and
(B) not more than 3 overseas students in a course intake; or
(b) a waiver of the applicant’s course fees carried out in the following circumstances:
(i) the applicant is part of an exchange program that involves:
(A) a formal agreement between an education provider and an education institution in a foreign country; and
(B) the reciprocal waiver of course fees as part of that agreement;
(ii) the applicant proposes to study full-time;
(iii) the applicant’s proposed studies will be credited to a course undertaken by the applicant in the applicant’s home country.
funds from an acceptable source
means one or more of the following:
(a) if the applicant:
(i) has successfully completed at least 75% of the requirements for his or her principal course; and
(ii) has applied for the visa in order to complete the course; and
(iii) does not propose to undertake any further course;
a money deposit held by the applicant or an individual who is providing support to the applicant;
(b) if paragraph (a) does not apply — a money deposit that the applicant, or an individual who is providing support to the applicant, has held for at least the 3 months immediately before the date of the application;
(c) a loan from a financial institution made to, and held in the name of, the applicant or an individual who is providing support to the applicant;
(d) a loan from the government of the applicant’s home country;
(e) financial support from:
(i) the applicant’s proposed education provider; or
(ii) the Commonwealth Government, or the government of a State or Territory; or
(iii) the government of a foreign country; or
(iv) a corporation that:
(A) conducts commercial activities outside the country in which it is based; and
(B) employs the applicant in a role in relation to which the applicant’s principal course is of direct relevance; or
(v) a multilateral agency; or
(vi) a provincial or state government in a foreign country, provided with the written support of the government of that country; or
(vii) an organisation specified by the Minister in an instrument in writing for this subparagraph; or
(viii) an acceptable non-profit organisation.
Clause 5A509. Other requirements
The applicant must give evidence that:
(a) he or she has successfully completed secondary schooling to the year 12 level (or its equivalent); or
(b) he or she:
(i) has successfully completed secondary schooling to the year 11 level (or its equivalent); and
(ii) has successfully completed in Australia a foundation course; or
(c) he or she:
(i) has successfully completed secondary schooling to the year 11 level (or its equivalent); and
(ii) has a certificate of enrolment in a foundation course that is to be undertaken in Australia before commencing the applicant’s principal course; or
(d) he or she:
(i) has successfully completed secondary schooling to the year 11 level (or its equivalent); and
(ii) has successfully completed a course in foundation studies that:
(A) is specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B) was conducted outside Australia; or
(e) he or she has successfully completed a qualification from the Australian Qualifications Framework at the Certificate IV level or higher in a course that was conducted in Australia; or
(f) he or she has a certificate of enrolment in a course that:
(i) leads to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; and
(ii) is to be undertaken in Australia before commencing the applicant’s principal course; or
(g) he or she has successfully completed a qualification from the Australian Qualifications Framework at the Certificate IV level or higher in a course that:
(i) is specified by the Minister in an instrument in writing for this subparagraph; and
(ii) was conducted outside Australia.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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