1515309 (Migration) - [2016] AATA 3955

1515309 (Migration) [2016] AATA 3955 (6 June 2016)
DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Oana Cristina Muresan
CASE NUMBER:  1515309
DIBP REFERENCE(S):  BCC2014/2071755
MEMBER:Karen Synon
DATE:6 June 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 572 Vocational Education and Training visa:
·cl.572.223(2)(a) of Schedule 2 to the Regulations.

Statement made on 06 June 2016 at 10:35am
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 23 October 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 22 August 2014. 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).
In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in a Certificate III in Aged Care and a Certificate IV in Aged Care. The visa was refused because the applicant did not provide the evidence required to demonstrate she was a genuine student as required by cl.572.223 of Schedule 2 to the Regulations.
Specifically the delegate refused the visa because, despite being requested to do so, the applicant did not provide the necessary evidence to demonstrate that she met the Schedule 5A English language requirement.
The applicant applied for review of the primary decision on 10 November 2015.
The applicant appeared before the Tribunal on 10 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from her husband, Cade Kim Tran Nguyen.
During the hearing the Tribunal discussed with the applicant the necessity of providing a current Confirmation of Enrolment in relation to the Certificate IV in Aged Care (which she said she commenced two weeks earlier); evidence of financial capacity and IELTS results with an Overall Band Score result of at least 5.5.
It was agreed that additional time would be granted following the hearing, until 31 May 2016 for these documents to be provided.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, as the applicant currently is enrolled in a Certificate IV in Aged Care (having completed her Certificate III in Aged Care on 8 April 2016) as her principal 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.
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 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 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 Romania. The assessment level for a holder of such a passport for Subclass 572 (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 572 are set out in Part 4 of Schedule 5A and are extracted in the attachment to this decision.
English language requirements
The applicant has provided evidence to the Tribunal (at folio 27) that she sat a ‘Pearson Test of English Academic’ (PTE Academic) on 11 August 2015 and achieved an Overall Score of 69. While clause 5A102 specifies ‘Alternative English Language Proficiency Tests to the International English Language Testing System for Student Visa Purposes’ and IMMI 14/002 specifies, in relation to satisfying Schedule 5A407(e) a score of 42, the Tribunal formed that view that results in a Pearson PTE Academic Test does not will satisfy the Schedule 5A English language requirements because while 5A102 and legislative instrument IMMI 14/080 are silent on the status of alternative English language tests undertaken in Australia, the terms of 5A102 appear to indicate the alternative tests, where provided for under legislative instrument, may be undertaken only in a foreign country or countries. Specifically, the clause confers on the Minister a limited discretion to specify the following matters cumulatively:
(a)      an English language proficiency test as an alternative to the IELTS test; and
(b)      the foreign country or countries in which that test may be taken by an applicant; and
(c)      the test score that must be achieved by the applicant for this clause.
This view is supported by reference to the text of the Explanatory Statement introducing 5A102 which provides that:
In some countries, the IELTS test is not available. However, in such countries, a reputable English language proficiency test may be available.
The provision for the Gazette Notice specifying alternative tests to the IELTS test is intended to avoid inconveniencing an applicant by requiring the applicant to travel to a country, other than his or her home country, to sit the IELTS test.
The view was discussed with the applicant at the hearing. She explained that she undertook the Pearson test because she was initially considering enrolling in Bachelor of Nursing and this was the English test that was recommended. After discussion it was agreed that additional time would be provided for the applicant to book into an IELTS test and provide the results to the Tribunal by 31 May 2016. Following the hearing, given the applicant’s inability to book into a test before 19 May, a further extension of time until 7 June was granted.
On 2 June 2016 the applicant provided results of an IELTS test she sat on 19 May 2016 in which she received an Overall Band Score of 7.0. These results have been verified by the Tribunal (at folio 108).
Therefore the Tribunal finds that the applicant meets 5A407(a) and consequently the English language proficiency.
Financial Capacity Requirements
The financial capacity the applicant must demonstrate is prescribed in 5A408.
Based on the new Certificate of Enrolment (CoE) provided the applicant will complete her Certificate IV in Aged Care on 18 December 2016 and hence has 6½ months before completing her course. The Tribunal therefore considers 8 months as the appropriate period for the calculation of the living costs, based on the day the student visa is likely to be granted.
The living costs are thus calculated as $12,406.
The Confirmation of Enrolment records the total course costs as $6,750. The applicant has provided evidence in the form of a receipt that $2,300 of these fees have been paid. Therefore the outstanding course costs are calculated as $4,450.
The applicant estimates the cost of one-way travel to Romania to be approximately $1,800 and the Tribunal accepts this as the $appropriate calculation.
The applicant must therefore demonstrate financial capacity in the following amounts:

Living costs Course fees

$12,406

Course fees

$4,450

Travel costs

$1,800

TOTAL

$18,656

The Tribunal has before it the following relevant statement from the applicant’s husband, Cade Kim Nguyen:
I am the primary financial provider for [the applicant]. I have been a physiotherapist for over 9 years, and have been in (sic) engaged in full time employment during that period.
Oana and I are related by marriage…As her spouse, I have allowed her full access to my funds to pay for course fees, living costs, school costs, and travel costs. I will continue to do so as her spouse.
In relation to [the applicant’s] student visa application – Subclass 572 Vocational Education and Training Sector Visa, I was responsible for providing financial documentation for her application.
On 30 June the Department of Immigration requested that Oana demonstrate that she had access to $6765.32. On 20 July I provided three months worth of bank statements, and a credit card statement demonstrating that the credit card had an available credit of $40,804.12.
On 28 July the Department of Immigration wrote back saying that “credit card statement in your spouse’s name – available credit in this type of account is not acceptable”. In addition, the three months worth of bank statements supplied to the DIBP, showed nil savings. I was unable to provide sufficient evidence of savings greater than the amount of $6,765.32 as requested.
However, despite not being able to demonstrate savings, I ask that you please take the time to consider other evidence that demonstrates Oana previously had access to, and will continue to have access to, adequate funds to pay for her course fees, living costs, school fees, and travel costs.
I am able to provide evidence of stable and consistent income, through bank statements showing regular payments from my long-term employers, Vivir Health Care Pty Ltd (subsidiary of Chandler Macleod) and Manningham Physiotherapy over the last 9 months. For example in July 2015 (around the time of the visa application) my total income for the month was $7,920.
I have included an Independent Contractors Agreement with Vivir Health Care demonstrating my commencement with work for them since March 2015. I am still working with them now, as shown by the most recent deposit by Chandler Macleod on my Commonwealth Bank Statement. There is evidence of receipts demonstrating completed payments to Oana’s first and competed course, by Lonsdale Institute for the amount of $3900. There is evidence of payment of Oana’s current and ongoing course run, by Academia. Two completed payments of $2,250 and $1,800 shown in my Credit Card Statement.
Finally, Oana has access to an account that is under both our names, which she has access to at all times, through her own key card. There is a picture providing (sic) indicating, that she a (sic) card exists. As you can see from the shared three month statement Bank Statement, there are underlined amounts demonstrating Oana has been able to pay for food; MYKE public transport, medical expenses, and any other miscellaneous expenses to ensure she has a safe and financially secure environment while she is a student here in Australia.
As you can see from the aforementioned evidence, there are sufficient grounds to demonstrate that Oana has been able to adequately pay for course fees, living expenses, travel costs, and any medical expenses. I hope you look beyond the lack of cash savings, at the time of her Student Visa Application, and see quite logically that all financial requirements have been met over a long term period.
The Tribunal explained to the applicant at the hearing that it was bound to apply the Regulations in relation to satisfying the financial capacity requirements and it has no discretion in this manner. In this respect the applicant is required to demonstrate a loan for the required amount from a financial institution which is an acceptable source. Alternatively if the applicant were to provide evidence of a money deposit then the Tribunal must be satisfied not only as to the amount but also that it was held by an acceptable individual at least 3 months before the date of application. The Tribunal must also be satisfied 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”.
While the delegate refused the visa on the basis that the applicant did not satisfy the English language proficiency requirements, in a letter dated 30 June 2015 requesting additional information the delegate stated “[i]t is noted that you have provided evidence including a credit card statement in your spouse’s name– available credit in this type of account is not acceptable”.
However, the Tribunal is of the view that an available credit on a credit card can constitute a loan for the purposes of Schedule 5A408 because Schedule 5A contains no definition of the term ‘loan’, and given the ordinary meaning of the word the term appears capable of extending to credit cards. A ‘loan’ in this context has been held to encompass a legally enforceable agreement by which a financial institution promises to advance funds to a borrower on condition that the funds advanced be repaid. In Justice Bromberg’s opinion in Patel v MIAC (2013) 211 FCR 35 an overdraft facility and a line of credit were found to be capable of being properly be described as a loan in ordinary parlance, which effectively overruled Burchardt FM’s obiter remarks to the contrary in Sidhu v MIAC [2011] FMCA 890. Further, there is support in Departmental guidelines,[1] that to the extent there is a pre-approved limit that may be drawn upon when required and which the borrower need only make re-payments on the funds withdrawn, a credit card account or facility may also satisfy the meaning of ‘loan’ for the purposes of Schedule 5A.
[1] PAM3 - GenGuideG - Student visas - Visa application & related procedures > Student visa assessment > Assessing Genuineness at [63.2] (re-issue date 21/5/15).
If providing evidence of a loan the Tribunal must be satisfied that it is for an amount of at least $18,656 or, if relying on a money deposit or a combination of money deposits, that the total amount of $18,656 must have been available 3 months before the visa application, that is from 22 May 2014.
The applicant has provided to the Tribunal on 19 May 2016 evidence of a credit card available balance of $25,733.90 at 18 May 2016. This credit card is issued by the Commonwealth Bank.
The credit card statement is dated 18 May 2016. It is in the name of the applicant’s husband. The Tribunal is satisfied that this loan from a financial institution is an acceptable source and that the applicant’s husband is an acceptable individual.
Therefore the applicant has provided evidence, to the Tribunal’s satisfaction, of funds from an acceptable source in excess of $18,656.
Consequently the applicant meets the financial capacity requirements of 5A408.
Other Requirements
The Tribunal is satisfied, on the basis of the documentation provided, that the applicant has given evidence that she successfully completed secondary schooling to year 12 (at department folio 5 and Tribunal folio 26) and that she is enrolled in a vocational education and training course. She thus meets the requirements of 5A409.
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).
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
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 572 Vocational Education and Training visa:
·cl.572.223(2)(a) of Schedule 2 to the Regulations.
Karen Synon

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 (2).
(2)An applicant meets the requirements of this subclause if:
(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.

Living costs Course fees	$12,406
Course fees	$4,450
Travel costs	$1,800
TOTAL	$18,656