1514745 (Migration)

[2016] AATA 4221

1514745 (Migration) [2016] AATA 4221 (8 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Huynh Dat Phu Tran

CASE NUMBER:  1514745

DIBP REFERENCE(S):  BCC2015/2021773

MEMBER:Alison Mercer

DATE:8 August 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 08 August 2016 at 10:41am

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

2. Where used in this decision:

   ·COE refers to Certificate of Enrolment in a course of study;

   ·PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   ·VET refers to Vocational Education and Training;

   ·A reference such as ‘5Axxx’ refers to the referenced item or clause of Schedule 5A to the Regulations;

   ·The Department refers to the Department of Immigration and Border Protection;

   ·Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   ·IELTS refers to the International English Language Testing System.

3. The applicant applied for the visa on 14 July 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).

4. In the present case, the delegate assessed the applicant against the criteria for a subclass 572 visa on the basis of enrolment in an Advanced Diploma of Engineering. 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 found that the applicant had not provided sufficient evidence of having the required amount of funds to cover the costs he had to meet for his assessment level pursuant to Schedule 5A of the Regulations.

5. The Tribunal received a review application from the applicant on 30 October 2015.  It was accompanied by a copy of the delegate’s decision.

6. On 28 June 2016, the Tribunal wrote to the applicant to invite him to attend a hearing on 22 July 2016.  He was requested to provide a copy of his current CoE (or offer of enrolment), proof of his past study in Australia (including an explanation for any gap(s) in his study), evidence of his level of English, evidence of his successful completion of secondary school, and documents that demonstrated that he had sufficient funds, or access to funds, to pay course fees, living costs, school costs (if relevant) and travel costs over the relevant period, including funds from an acceptable source to which he would have access.  The Tribunal noted that if the applicant sought to rely on a money deposit, he might need to show that the deposit had been held for a period prior to the date of his visa application, and if he sought to rely on a loan secured by a money deposit, then he should provide the source of the deposit and proof that the loan was current.  The Tribunal requested that he provide this information to the Tribunal at least 7 days prior to the hearing.

7. The applicant appeared before the Tribunal on 22 July 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

8. The applicant told the Tribunal that he had now completed his Advanced Diploma of Engineering from Melbourne Polytechnic.  At the time of his visa application, he had applied for another student visa as he could not finish the course within the original time frame of his earlier student visa. He provided a copy of his Advanced Diploma.  When asked whether he was enrolled at present, the applicant said that he was not. In response to the Tribunal noting that this was in itself a reason to affirm the decision under review, as it was a mandatory requirement for a student visa that the applicant was enrolled in a registered course (or had a letter of offer of enrolment), and this would form a separate reason to refuse his visa application.  The Tribunal further noted that without a CoE, it was unable to determine what assessment level should be used to assess the applicant pursuant to Schedule 5A in relation to his financial capacity, English proficiency and secondary education. The applicant said that he hoped to study a Bachelor of Engineering degree at Melbourne Polytechnic.  When asked why he had not enrolled in this course, if he genuinely intended to take it, the applicant said that he currently held a bridging visa E and did not have permission to study and therefore could not get a CoE.  The applicant was unable to explain why he held a bridging visa E and not a bridging visa A, which generally permits study.  He asked for time to try to resolve the situation and provide a CoE for this course to the Tribunal.

9. The Tribunal agreed to defer its decision until 29 July 2015 to enable the applicant to provide a CoE and the other evidence requested in the hearing invitation letter.

10. On 28 July 2016, the Tribunal received the following information from the applicant by email (together with English translations for the Vietnamese documents):

    ·CoE for Bachelor of Engineering Technology (Civil) at Melbourne Polytechnic for the applicant, staring 29 July 2016 and ending 15 December 2018.  The CoE indicates that the total course tuition fees are $41,400 and that $4,600 of these had been pre-paid by the applicant;

    ·savings account passbook (fixed term) for Tran Van Phi showing he has a term deposit of VND 500,000,000 [approximately AUD $29,286] with HD Bank, which was deposited on 2 March 2016;

    ·updated bank statement for this account showing balance of VND 200,000,000 [approximately AUD $11,714] at 4 May 2016;

    ·further bank statement dated 25 May 2016 for Tran Van Phi for ACB Bank showing term deposit of VND 100,000,000 [approximately AUD $8,587] deposited on 25 November 2015;

    ·further undated bank statement for Tran Van Phi for ACB Bank showing term deposit of VND 200,000,000 [approximately AUD $11,714] deposited on 2 March 2016;

    ·further HD Bank fixed term deposit certificate for Tran Van Phi for VND 500,000,000 [approximately AUD $29,286], deposit date 27 April 2016;

    ·birth certificate for the applicant showing his father is Tran Van Phi;

    ·student payment schedule from Melbourne Polytechnic listing the total tuition fees for the applicant’s Bachelor degree as $46,000 and confirming he had paid $4,600 of this as at 29 July 2016; and

    ·copies of the applicant’s NetBank Saver account for the period 7 July 2015 to 7 July 2016 showing closing balance of $23,335.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. In the present case, as the applicant currently is enrolled in a Bachelor of Engineering Technology (Civil) 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.

13. 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.

14. On the evidence before the Tribunal, the applicant in this case has not at any relevant time been an eligible higher degree student with a corresponding COE and cl.573.223(1A) does not apply.  As such, to meet cl.573.223, the applicant must give evidence in accordance with the requirements set out in Schedule 5A to the Regulations for the highest assessment level for the applicant. Broadly speaking, these requirements relate to English language ability, financial capacity, and other prescribed matters, and differ depending upon the subclass sought and the applicant’s assessment level. Additionally, the Regulations require that the Minister is satisfied that: the applicant is a genuine student having regard to the stated intention to comply with the applicable visa conditions, and any other relevant matter; and that while the applicant holds the visa he or she will have access to the funds relied upon to satisfy the Schedule 5A financial capacity requirements.

    Does the applicant meet the applicable evidentiary requirements in Schedule 5A?

15. 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.

16. In this case, the applicant holds a passport of Vietnam.  The assessment level for a holder of such a passport for subclass 573 (the subclass for the applicant’s principal course) is assessment level 2: IMMI 14/014.  In this case, the highest assessment level to which the applicant is subject is assessment level 2.

17. 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

18. The CoE provided by the applicant indicates that the applicant has satisfied his education provider’s English language requirements.  As such, the Tribunal is satisfied that he meets cl.5A510.

    Financial capacity

19. Clause 5A511 provides that the applicant must give evidence that he has funds from an acceptable source that are sufficient to meet his course fees, living costs, school costs (if applicable) and travel costs for the first 12 months and a declaration that he has access to funds from an acceptable source sufficient to meet these costs for the remainder of his proposed stay in Australia beyond the first 12 months.

20. The Tribunal is satisfied that the applicant is single and has no dependents and thus has no school fees.  Having regard to the specified living costs it must take into account, the Tribunal calculates the funds he must demonstrate as follows:

    ·tuition fees for first 12 months (pro-rata calculation based on total fees of $46,000- $4,600 = $41,400 for the 28 month course, being approximately $1,479 per month): $17,743;

    ·living costs: $18,610; and

    ·return travel costs (say) $1,500

    ·TOTAL: AUD $37,853 [approximately VND 645,625,806].

21. The applicant has now provided evidence that he has $23,335 in his own account and that his father Tran Van Phi holds various term deposit accounts in Vietnam. The most recent one of those provided is the term deposit made by the applicant’s father on 27 April 2016 of VND 500,000,000 [approximately AUD $29,286] with HD Bank.  The Tribunal is satisfied that the applicant and his father are both acceptable sources of funds for these purposes, and that their combined bank accounts total AUD $52,621, which exceeds the funds calculated above.

22. The Tribunal is further satisfied that the applicant made a declaration that he would have access to funds from an acceptable source sufficient to meet these costs for the remainder of his proposed stay in Australia beyond the first 12 months as part of his student visa application form.

23. Accordingly, the Tribunal is satisfied that the applicant meets cl.5A511.

    Other requirements

24. The Tribunal finds that the applicant has been accepted into the Bachelor of Engineering Technology (Civil) degree at Melbourne Polytechnic having completed an Advanced Diploma in the same field with the same institution.  The Tribunal is satisfied that he has the educational qualifications required by his proposed education provider, and that he therefore meets cl.5A512.

25. On the basis of the above, the Tribunal finds that the applicant has given evidence in accordance with the applicable Schedule 5A requirements and therefore satisfies cl.573.223(2)(a).

26. 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

27. 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.

    Alison Mercer

    
    

    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.

    Extract from Schedule 5A: Part 573

    ...

    Division 4 - Requirements for assessment level 2

    Clause 5A510      English language proficiency

    [5A510]      The applicant must give evidence that he or she has a level of English language proficiency that satisfies his or her proposed education provider.

    Clause 5A511      Financial capacity

    [5A511] (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 12 months:

    (i)      course fees;

    (ii)      living costs;

    (iii)      school costs; and

    (b)      evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and

    (c)      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.

    [5A511] (1A)      If the applicant is:

    (a)      fully funded; or

    (b)      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;

    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.

    [5A511] (2)      In this clause, funds from an acceptable source does not include the value of an item of property.

    Clause 5A512      Other requirements

    [5A512]      The applicant must give evidence that he or she has the educational qualifications required by his or her proposed education provider.