1516501 (Migration)

[2016] AATA 4654

1516501 (Migration) [2016] AATA 4654 (7 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Quazi Mahmuda Begum
Mr Humayun Kabir Khokon

CASE NUMBER:  1516501

DIBP REFERENCE(S):  CLF2015/60678

MEMBER:Geraldine Hoeben

DATE:7 November 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

·cls.573.223 and 5A508 of Schedule 2 to the Regulations.

Statement made on 07 November 2016 at 1:00pm

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 9 November 2015 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who arrived in Australia on 09/04/09, applied for the visas on 30 September 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).

3. In the present case, the delegate assessed the first named applicant (the applicant) against the criteria for a Subclass 573 visa on the basis of enrolment in assessment level 3 courses. 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 because the applicants could not provide evidence of financial capacity totalling AUD 42,781.23 pursuant to cl 5A508.

4. The applicants appeared before the Tribunal on 03/11/16 to give evidence and present arguments. The Tribunal also received oral evidence from both the applicant’s husband, the secondary applicant, and her brother.

5. The applicants were represented in relation to the review by their registered migration agent who also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case, as the applicant currently is currently studying a Masters of Business Administration as her 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.

8. 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.

9. On the evidence before the Tribunal, the applicant in this case is, and was at time of application, an eligible higher degree student who has a COE for each relevant course of study.  The applicant is currently enrolled in an eligible degree at the Holmes Institute which is an eligible education provider. To meet cl.573.223 therefore, the applicant must give evidence that they have a level of English that satisfies the education provider, and the educational qualifications required by the provider. 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 has sufficient funds to meet the costs and expenses during the proposed stay: cl.5A508.

10. The Tribunal had the opportunity of observing the applicant and assessing her level of English and accepts that she has an excellent grasp of English. The Tribunal also notes that she has, during her period of study in Australia, also completed an approved English language course as confirmed through the PRISMS data base.

11. The Tribunal gave a copy of the PRISMS record to the applicant for correction and she verified it correctness.

12. The applicant provided during the hearing, together with the applicant’s MA kindly supplying, inter alia, at the request of the Tribunal, post-hearing the following:

    ·Letter from the Campus Director Rob Relton of Holmes Institute dated 04/11/16 indicating that, inter alia, the applicant had satisfactorily completed 50% the Masters of Business Administration and that she regularly attends her classes;

    ·JP certified statement (Australian) of financial support from the applicant’s brother Alam Rakibul the amounts of approximately $16,000 in a Sydney ANZ account;

    ·JP certified statement (Bangladesh) of financial support of three fixed deposits from the applicant’s husband Humayun Khokon( jointly with a Quazi Mahmuda) in the approximate amount of $29,000 from Prime Bank Ltd Dhammond R/A 1209 Dhaka Bangladesh; and

    ·Two cheques in Bangladesh currency corroborating the fixed deposits above.

    Does the applicant have sufficient funds to meet costs and expenses?

13. To satisfy the requirements of being a genuine applicant for entry and stay as a student, the Tribunal must also be satisfied the applicant, while holding the visa, will have sufficient funds to meets the costs and expenses required to support both the applicant and any member of the applicant’s family unit during the stay in Australia.

14. The applicant and her brother gave evidence before the Tribunal. The applicant gave evidence which essentially satisfied the above amounts of financial support for the period of study of the principal course she is currently studying. The secondary applicant concurred with the information provided by the applicant. He also verified the amounts of fixed deposits in Prime Bank, Dhaka.

15. The applicant’s brother also gave evidence that the amount as outlined above in the ANZ account are for the financial support of the applicant while she is studying her present course and that they have been present for more than three months.

16. Based on the above the Tribunal finds that the applicant has only completed 50% of her principal course of study and according to the relevant clause not the 75% requirement. This is supported by the letter of the Holmes Institute above.

17. In answer to the Tribunal’s concern as to her proposed further course of study, Masters of Business Administration to commence as per the relevant COE on 01/01/17 the applicant replied that it was a continuation of her current course of study. This is not mentioned in the Holmes letter above in any state or form but the Tribunal understands that this is possibly the applicant’s own personal perception and so the Tribunal finds that the applicant did not attempt to deliberately mislead it. The non-compliance of the two requirements: the no- compliance of 50% course completion together with an additional proposed course of study puts her into the higher category of financial support under the relevant regulation.

18. There is nothing before the Tribunal to question the evidence presented to the Tribunal save for the qualification contained in paragraph 17 above.

19. The Tribunal accepts that the amount of $42,781.23 is an amount which the applicant requires for her financial support of her current principal course of study.

20. The Tribunal finds that the applicant has approximately $46,000 for her financial support during the studying of her current principal course of study.

21. The Tribunal finds that the applicant, through her husband the secondary applicant, has access to funds in the amount above for the applicant’s financial support of her current course of study.

22. The Tribunal further finds that the applicant’s brother has given his financial support in the amount above to the applicant during the period of her current course of study.

23. The Tribunal is satisfied the applicant will have access to the relevant funds, cl.573.223(1A)(c) is met. As the Tribunal is satisfied that the applicant has access to the relevant funds, the further Tribunal similarly finds the secondary applicant also has access to the relevant funds for costs associated with the applicant’s current course of study.

    CONCLUDING PARAGRAPHS

24. 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

25. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first and second named applicants meet the following criteria for a Subclass 573 Higher Education Sector visa:

    ·cls.573.223 and 5A508 of Schedule 2 to the Regulations.

    Geraldine Hoeben

    
    

    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.