1513273 (Migration)

1513273 (Migration) [2016] AATA 3598 (21 March 2016)
DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Swaroop Kumar Yathirajam
CASE NUMBER:  1513273
DIBP REFERENCE(S):  BCC2015/819044
MEMBER:Karen Synon
DATE:21 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 21 March 2016 at 10:16am
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 8 September 2015 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 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).\
In the present case, the delegate assessed the applicant against the criteria for a Subclass 573 visa on the basis of enrolment in a Master of Business Administration for which the applicant had a Confirmation of Enrolment issued by Holmes Institute. The delegate, after assessing that the applicant must meet the Schedule 5A requirements, determined that he did not satisfy 5A408 and therefore the visa was refused because the applicant did not provide the evidence required to demonstrate he were a genuine student as required by cl.573.223(2) of Schedule 2 to the Regulations.
The applicant applied for review of the primary decision on 28 September 2015 and provided a copy of the department’s decision to the Tribunal.
The applicant appeared before the Tribunal on 15 March 2016 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent who was present throughout the hearing.
At the hearing a submission was handed up which made the following relevant points:
Financial Requirements
Tuition Fee: Cost of the course he is studying which is Master of Business Administration from Holmes Institute Pty Ltd was $22,500. As of today he has paid all the fee (sic) that are to be paid for his course. However his current CoE shows that there is a balance of $9625 which is an equivalent fee for 4 subjects to be enrolled next semester. He was given a supplementary exam on 18^th of March 2016…as he fell short of few marks for a pass when he studied that subject during the latest semester…He is certain to complete this subject which leaves him to enrol in 3 subjects only in the next semester. So for the next semester he would be required to pay $7700 only…He has paid the fee in full for the ongoing semester that is going to start on 21^st of March 2016…I request you to consider the fact that he has paid the fee the course so far. And the balance fee left was an additional fund required as he failed subjects in the previous semesters. His Father is ready to transfer the money the moment he requires the fee to be paid. As it is only one semester they haven’t taken any loan to make a small payment of Rs 5,00,000.
I request you to consider the fact that currently Homes Institute is a provider under student visa participation program. Financial requirements of students who study a course under Student Visa Participation program are considered at assessment level I. So given the fact that he has paid the total tuition fee so far I request you to provide him a chance to pay the balance fee and continue with his studies
Academic Performance:
in the current enrolled Master of Business Administration his performance has been satisfactory even though it is not up to the mark. He has passed 3 subjects out of 8 subjects enrolled so far and with a certainly (sic) to pass one more subject with a supplementary exam (which incurs to (sic) additional payment of fee). Coming from a Technical academic background and for the stress of being in situations which he has never been in his home country and for the turbulence during his studies in the previous semesters he has not performed the way he did in his Bachelor’s degree. However he has recovered from the setbacks in his studied (sic) during early months in Australia. I urge you to consider his performance during his Undergraduate studies and studies at Latrobe University. At Latrobe studying Master of Computer Science, all the subjects he passed were in distinction.
Living expenses:
As for the Schedule 5 of the Migration regulations he is supposed to show that he has access to $18,610 per annum and a $1000 for travel back to his home country. He is currently employed in Australia and with working within the limitations of work rights provided to him. I have enclosed his employer’s details. Unfortunately due (sic) unavailability of his accountant Employer couldn’t provide the latest payslips. However I have enclosed bank statement of [the applicant] which shows salary deposits of around $400-$435 per week which satisfies the amount of money towards his living expenses and travel back to his home country, India.
Also provided were the following relevant documents:
·A statement of Results in relation to the applicant’s Master of Business Administration;
·A letter from Holmes Institute dated 11 March 2016 confirming that the applicant commenced his Master of Business Administration on 16 March 2015 and is due to complete it on 31 July 2017 as a full-time student;
·A Confirmation of Enrolment in relation to the Master of Business Administration recording outstanding tuition fees of $9,625;
·Three receipts from Holmes Institute recording total payments of $7,720 in March 2016;
·Seven pages of transactions from the applicant’s Commonwealth Bank Smart Access account with regular deposits from “Giga Retail Pay” highlighted;
·A copy of the applicant’s PTE Academic Test results for a test undertaken on 16 February 2015; and
·A page of transactions from the applicant’s Commonwealth Bank NetBank Saver account with a deposit of $4,102 from “Y Krishna Murthy…Maintenance” highlighted.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, as the applicant currently is enrolled in Master of Business Administration 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.
The requirements of cl.573.223 differ depending upon whether or not the applicant is, and was at the time of application, 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 or for visa applications made on or after 23 November 2014 an advanced diploma in the higher education sector, 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 representative in his written submission stated “I request you to consider that currently Holmes Institute is a provider under Student Visa Participation program…financial requirements of students who study a course under Student Visa Participation are considered at assessment level I. So given the fact that he has paid the total tuition fees so far I request you to provide a chance to pay the balance fee and continue with his studies”.
As discussed with the applicant at the hearing the Tribunal acknowledges that in the current instrument IMMI 16/003 Holmes Institute is an eligible education provider however the Tribunal must also be satisfied that the applicant was, at the time of application, and is at the time of decision an eligible high degree student. In this case, at the time of application the applicable legislative instrument IMMI 14/075 did not designate Holmes Institute as an eligible education provider (although it was designated as an education provider partner).
Therefore it is the Tribunal’s view based on the evidence before it, the applicant in this case was not at the time of application an eligible higher degree student with a corresponding CoE and cl.573.223(1A) does not apply.
Consequently, 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 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.
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. 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.
Financial Capacity
The financial capacity the applicant must demonstrate is prescribed in 5A408.
The delegate refused the application because he was not satisfied that the applicant had provided satisfactory evidence that he had the access to funds as claimed because investigations revealed that the fixed deposits and accounts held in the name of the Mr Yehtirajam Krishna Murthy with the Allahabad Bank were closed and the funds withdrawn from the overdraft account. It was confirmed that these funds were not transferred to a university or the applicant.
The Tribunal noted at the hearing that the applicant had provided none of the evidence it had requested in its hearing invitation letter before the hearing and specifically none of the evidence that would demonstrate his financial capacity. It also noted that when he applied for review of the decision the Tribunal wrote to him acknowledging this and advising “if you wish to provide material or written arguments for the Tribunal to consider you should do so as soon as possible”.
Invited to provide evidence as to whether he meets the Schedule 5A requirements the applicant provided a submission and documents (as detailed above). He said he had only been able to provide these documents today because the college had been closed and only opened last week and that is when he made his payments. This caused the delay in providing these documents.
Based on the Certificate of Enrolment (CoE) provided by the applicant he will complete his Masters of Business Administration on 31 July 2017 and therefore is required to demonstrate that he has funds from an acceptable source that are sufficient to meet his expenses for 12 months. In addition, he must declare that he has access to funds from an acceptable source sufficient to meet his expenses for the remainder of his proposed stay in Australia.
The living costs are thus calculated as $18,610.
The Confirmation of Enrolment records that the total outstanding course fees are $9,625 of which the Tribunal is satisfied that the applicant has recently paid a total of $7,720. The outstanding course fees are therefore calculated as $1,905. The applicant agreed with this calculation at the hearing.
The applicant considers $1,000 to be the appropriate calculation of the cost of one way return travel to India and the Tribunal concurs with this estimate.
The applicant must therefore demonstrate financial capacity in the following amounts:

Living costs Course fees

$18,610

Course fees

$1,905

Travel costs

$1,000

TOTAL

$21,515

The applicant gave evidence that he works at a service station for 20 hours a week and his father supports him as he goes; as he needs money his dad is sending it to him. His NetBank statement is evidence that his father sends him money as necessary. He agreed he cannot presently demonstrate financial capacity of $21,515.
The Tribunal noted that therefore, because he has not provided the required financial capacity evidence, at the time of decision, he cannot satisfy the Schedule 5A requirements. Invited to comment the applicant said he has studied well and his father has been supporting him. He has been shy to tell his father that he had failed some subjects and his father, for the next semester, will ‘instruct’ to take an education loan for the remaining small (course) fees. He wants to complete his study. He has not successfully completed any study in Australia since arriving. The applicant said he understood that he does not meet the financial capacity requirements. The Tribunal notes that the applicant has been clearly on notice that the issue on review is whether he can satisfy the financial capacity requirements. Further, it had written to him and clearly identified all of the evidence he would need to provide in order to have a successful outcome. In addition the Tribunal noted that the applicant had given evidence that he could not provide the necessary financial capacity documentation. The Tribunal would therefore not grant additional time following the hearing for other evidence to be provided.
As the applicant does not satisfy the financial capacity the Tribunal is not satisfied that the applicant meets financial capacity requirements of 5A408.
As the applicant does not meet the requirements of 5A408 it is not necessary for the Tribunal to consider if he meets the English or Other Requirements of Schedule 5A.
On the basis of the above, the applicant has not given evidence in accordance with the applicable Schedule 5A requirements and therefore does not satisfy cl.573.223(2)(a).
For these reasons, the Tribunal finds that criteria for the grant of a Subclass 573 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
The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.
Karen Synon

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 higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree 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 573.223(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.
Division 3 - Requirements for assessment level 3 [LEGEND note: clause 5A407 - clause 5A409]
Clause 5A407    English language proficiency
[5A407]    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 5.5;
(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 4.5;
(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 achieved, less than 2 years before the date of the application, the required score in a test that is specified in a legislative instrument made by the Minister under clause 5A102;
[(e) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(5) - LEGEND note]
(f) 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.
Clause 5A408    Financial capacity
[5A408] (1) The applicant must give, in accordance with this clause:
[(1) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]
(a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 12 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 12 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.
[5A408] (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 in a legislative instrument made by the Minister for this paragraph;
[(ii) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(5) - LEGEND note]
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.
[5A408] (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;
(ii) 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) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]
(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 an acceptable individual;
[(aa) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]
(aa) if paragraph (a) does not apply — a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application;
[(b) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]
(b) a loan from a financial institution made to, and held in the name of, an acceptable individual;
(c) a loan from the government of the applicant's home country;
(d) 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 5A409    Other requirements
[5A409] The applicant must give evidence:
(a) that he or she has successfully completed secondary schooling to the year 11 level (or its equivalent); and
(b) that:
(i) he or she is enrolled in a vocational education and training course; or
(ii) he or she is enrolled in a course that is a pre-requisite to a vocational education and training course and a vocational education and training course; or
(iii) he or she is enrolled in a course that is a pre-requisite to a vocational education and training course and has an offer of a place in a vocational education and training course.

[2016] AATA 3598

21 March 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Living costs Course fees	$18,610
Course fees	$1,905
Travel costs	$1,000
TOTAL	$21,515