1514902 (Migration)

[2016] AATA 4582

1514902 (Migration) [2016] AATA 4582 (24 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Muma Chola

CASE NUMBER:  1514902

DIBP REFERENCE(S):  BCC2015/2648361

MEMBER:Adrian Ho

DATE:24 October 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 24 October 2016 at 6:13pm

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 21 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:

   a.COE refers to Confirmation of Enrolment;

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

   c.VET refers to Vocational Education and Training;

   d.ELICOS refers to English Language Intensive Courses for Overseas Students;

   e.A reference such as ‘5Axxx’ refers to the corresponding item or clause of Schedule 5A to the Migration Regulations;

   f.The Department or Immigration refers to the Department of Immigration and Border Protection; and

   g.IELTS refers to the International English Language Testing System.

3. The applicant applied for the visa on 11 September 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).

4. 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 evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant, as required by cl.572.223(2)(a) of Schedule 2 to the Regulations.

5. The applicant appeared before the Tribunal on 10 May 2016 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case, as the applicant proposes to study in the VET sector, and the subclass that may be granted is Subclass 572.

8. 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.

9. 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.

10. On the evidence before the Tribunal, the applicant in this case is not an eligible VET student with a corresponding COE and cl.572.223(1A) does not apply.  As suggested, the education provider for the applicant’s VET sector advanced diploma (f.63) is not, and was not at the time of application, a specified eligible education provider.

11. 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?

12. 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.

13. In this case, the applicant holds a passport of Zambia.  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.

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

    Financial capacity

15. The applicant’s advanced diploma course extends to June 2017 (f.63) and at the least she must show funds for living costs for at least 7 months (the ‘first 12 months’ as defined) to June 2017 or over AUD 10000.

16. The issue discussed at hearing was whether all of the evidence as pertains in Schedule 5A to the applicant had been given so as to satisfy cl.572.223(2)(a).

17. At hearing, the applicant was given a summary of the definition of ‘acceptable individual’ in Item 5A101.

18. The applicant gave evidence at hearing that the individuals in whose name she had disclosed funds were not acceptable individuals as defined and she indicated that she understood that an aunt or uncle was only an acceptable individual if that person was a citizen, permanent resident or New Zealand citizen, usually resident in Australia, and she agreed that the sponsors she had disclosed did not hold that status in Australia, and did not reside in Australia.

19. The applicant was also advised that corporate or business entitles such as PrimeLink Investments Ltd (f.21), Welbil Agencies Limited (f.23) and Muchibil Investments Limited (f.37) were not acceptable individuals, and funds in the name of such entitles could not be considered.

20. It was suggested to the applicant that based on the evidence before the tribunal at hearing, the applicant had not disclosed funds from the acceptable source in the name of an acceptable individual and had not provided the evidence at Item 5A408.

21. The applicant was directed to the tribunal’s long and detailed letter sent before the hearing which provided a detailed statement of what type of evidence would meet the requirements, and she took advantage of the hearing to clarify her understanding of the evidence required until Item 5A408.

22. The tribunal afforded the applicant more time in which to furnish any additional evidence, and was given until 19 May 2016.

23. She submitted new evidence and claimed to be in a relationship with Mr Elijah Tatenda Sabondo, Australian citizen.  He made a statutory declaration signed 17 May 2016 claiming to be in a committed relationship with the applicant and advising the couple had been allocated a wedding date (f.133).  She submitted an official state government document confirming the date of marriage set for 24 June 2016 (f.134).  Despite the passage of time since, the applicant has not submitted evidence that a marriage on that date, or any other date, has taken place as claimed.

24. She submitted evidence Mr Sabondo had a loan approved on 16 May 2016 (f.134) and that, on 17 May 2016, they had a joint bank account with zero balance and nil transactions (f.127).

25. As there is no evidence the applicant and Mr Sabondo are in fact married they are not in a married relationship and he is not her spouse: s.5F.

26. The tribunal has considered if they are in a de facto relationship: s.5CB.

27. The tribunal may consider any of the circumstances in r.1.09A(3).

28. Based on the limited evidence submitted, the financial aspects of the relationship were put in place on and from 16 May 2016, just before the 19 May 2016 deadline set by the tribunal.  On the evidence, the bank account in joint names was created around this time and the loan now relied upon was taken out around this time.  There is no evidence that the financial aspects of the relationship have been in place for any longer length of time.

29. There is no evidence about the nature of any household.

30. There is no evidence as to any social aspects of the relationship.

31. There is no evidence as to their commitment to each other, other than the statement in the statutory declaration.

32. Weighing these circumstances on the limited evidence before the tribunal, the tribunal is not satisfied the couple have been in a committed relationship for any length of time and the arrangements above were put in place shortly before the tribunal’s post-hearing deadline for submission of further evidence.

33. On the very limited evidence provided, the tribunal is not satisfied that the de facto relationship defined in s.5CB exists between the applicant and Mr Sabondo, and therefore finds he is not the applicant’s de facto partner and not an acceptable individual.  Therefore, the funding submitted in his name cannot be considered.

34. For these reasons, the funds disclosed by the applicant are each of them in the name of and held by persons and entitles which are not acceptable individuals.

35. The applicant has not given evidence in accordance with Schedule 5A Item 5A408.

36. 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.572.223(2)(a).

37. 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

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

    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.