1516522 (Migration)
[2016] AATA 3466
•8 March 2016
1516522 (Migration) [2016] AATA 3466 (8 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Shizhe CHEN
CASE NUMBER: 1516522
DIBP REFERENCE(S): BCC2015/2200210
MEMBER:Gabrielle Cullen
DATE:8 March 2016
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visas 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);and
·cl.572.223(2)(c) of Schedule 2 to the Regulations.
Statement made on 08 March 2016 at 9:45am
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 12 November 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 31 July 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).
In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in a Diploma of Interpreting and Advanced Diploma of Translating. The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.572.223(2) of Schedule 2 to the Regulations as he did not provide evidence of funds to meet the financial capacity requirements in Schedule 5A. The decision of the delegate[1] notes that on 3 August 2014 the applicant was requested to provide evidence of funds to meet expenses totalling $10,095 but on 6 August 2015 only provided a bank statement showing funds in the sum of $806.09.
[1] Attached to the application for review
The applicant appeared before the Tribunal on 15 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent.
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 is enrolled in an Advanced Diploma of Translating as his 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.
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.
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 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.
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 China. 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 Schedule 5A.
The following relevant documents and evidence have been provided by the applicant.
·Evidence the applicant is enrolled in an Advanced Diploma of Translating from 18 January 2016 to 3 July 2016.
·Receipt dated 20 January 2016 indicating he had paid the full amount of the $7,100 fees for the Advanced Diploma of Translating.
·Certificate from the applicant’s education provider indicating he achieved a Bachelor of International Business (Accounting Major) on 24 July 2015.
·The applicant’s HSC issued by the NSW Board of Education.
·Birth Certificate indicating the applicant is the son of Zhu Cui Qiong.
·Money deposit in the name of the applicant’s mother, Zhu Cui Qiong, in the sum of 200,000RMB from 28 November 2015 to 30 May 2016.
·Applicant’s mother’s account indicating she held 342,768RMB in the previous four months, amounting to a sum of approximately $75,000.
·Financial support statement from the applicant’s mother.
·Commonwealth Bank Complete access account in the name of the applicant from 1 February 2015 to 31 July 2015, showing he held $806.09 three months before the date of application on 30 April 2015, and the applicant’s Commonwealth Bank net bank saver indicating he held $11,020.73 as at 26 April 2015
·Submission from the applicant’s representative dated 9 February 2016.
·Correspondence between the Tribunal and the applicant’s representative after the hearing.
The applicant attended a hearing on 15 February 2016. The financial capacity requirement of cl.5A408 was discussed. The applicant indicated he had not completed 75% of the course. The Tribunal noted that the evidence of a money deposit from his mother was not three months before the date of visa, as required. Access to funds was discussed and the applicant was given until 22 February 2016 to provide further evidence.
English language proficiency – clause 5A407
The evidence indicates that in July 2015 the applicant completed a Bachelor of International Business, and had been studying it from mid-2013. It therefore finds he has completed a substantial part of a course leading to a qualification from AQF at Certificate IV or higher less than two years before the date of the application.
Movement records indicate he was the holder of a subclass 573 student visa while undertaking this course.
Therefore as the evidence indicates that less than two years before the date of the application as the holder of a student visa, the applicant successfully completed a substantial part of a course that was conducted in English and leading to a qualification from AQF at the Certificate IV or higher, the Tribunal finds he meets clause 5A407(d)(iii) and therefore clause 5A407.
Other requirements - Clause 5A409
Clause 5A409 requires that the applicant provide evidence that he has successfully completed secondary schooling to the year 11 or equivalent and is enrolled in a vocational education and training course or enrolled in a prerequisite to a vocational education and training course.
The applicant has provided evidence he completed his Higher School Certificate in Australia. The applicant therefore has provided evidence of completing secondary schooling to the Year 11 level or equivalent. As he is enrolled in an Advanced Diploma of Translating the Tribunal finds he meets clause 5A409.
Financial capacity requirements - clause 5A408
The applicant is required to give evidence of funds from an acceptable source that are sufficient to meet his course fees, living costs for the first 12 months and travel costs. School costs are not relevant in this case as the applicant does not have any school age dependent children.
The ‘first 12 months’
The ‘first 12 months’ is defined in Clause 5A101 as follows:
first 12 months,
for an applicant, means the period that:
(a) begins:
(i) if the application is made outside Australia — on the day of the applicant’s expected arrival in Australia; or
(ii) if the application is made in Australia — on the day that the student visa is expected to be granted to the applicant; and
(b) ends on the earlier of the following:
(i) the day 12 months after the beginning of the period;
(ii)the last day of the applicant’s proposed stay in Australia.
In this case the first 12 months begins on the expected date of visa grant, which is approximately 3 April 2016. The first 12 months ends on the earlier date of either 12 months later or the last day of the applicant’s proposed stay in Australia.
The applicant’s principal course, the Advanced Diploma of Translating has a proposed end date of 3 July 2016. This is a period of 3 months. Adding a month to depart the first 12 months in this matter is 4 months.
Course fees
‘Course fees’ are defined in Clause 5A101. The total course fees are $7,100 and the evidence indicates the applicant has paid all of these fees. The Tribunal finds the applicant’s course fees that he owes is $0.
Living costs
‘Living costs’ are $18 610 per year for a single person with no dependent children (subclause 5A104(1)). This is the ‘basic rate’. As the Tribunal has determined the relevant period to be 4 months, the Tribunal finds the living costs for the applicant will be $6,203.
Travel costs
‘Travel costs’ are defined in Clause 5A101. The applicant’s home country is China. The cost for one economy one way ticket from Sydney to China varies but is approximately $1000.
Total costs
In accordance with clause 5A408, the Tribunal finds that the applicant’s total course fees, living costs and travel costs for the first 12 months are as follows:
Course fees $ 0
Living costs $6 203
Travel costs $1 000
Total $7 203
The applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $7 203.
Funds from an acceptable source
‘Funds from an acceptable source’ is defined in subclause 5A408(2).
As there is no evidence that the applicant has completed 75% of the course, he is required to show either a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the visa application; or a loan from a financial institution made to, and held in the name of, an acceptable individual.
The applicant has provided evidence in his Commonwealth Bank Netbank saver account that he held $11,020.73 as at 26 April 2015 which is three months before the date of application.
The Tribunal finds that the Commonwealth Bank is a ‘financial institution’ for the purposes of the regulations
The evidence provided to the Tribunal indicates that the funds are available for the purpose to support the applicant’s study, living and travel expenses. The applicant is an acceptable individual according to 5A101.
The applicant has therefore provided evidence of a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the visa application totalling $11,020.72 which is more than the required amount of $7,203. The applicant has demonstrated that he has funds from an acceptable in accordance with cl.5A408(2).
The Tribunal is therefore satisfied that the applicant has provided evidence of a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the visa application that is sufficient to meet his expenses for course fees, living costs and travel costs for the first 12 months. The applicant therefore meets cl.5A408 (1)(a) and cl.5A408(1)(b).
The applicant has provided the Tribunal a declaration in the visa application stating that he has access to funds from an acceptable source that are sufficient to meet his costs for the remainder of her stay in Australia. The applicant therefore meets cl.5A408(1)(aa).
The applicant must also show that the regular income of any individual providing the funds to him is sufficient to accumulate the level of funding being provided to that individual. The evidence indicates that the applicant meets cl.5A408 (1)(c).
In this case cl.5A408 (1A) does not apply to the applicant.
The Tribunal is therefore satisfied that the applicant meets all elements of clause 5A408 of Schedule 5A in relation to financial capacity.
Conclusion – Schedule 5A
On the basis of the above findings, the Tribunal finds that the applicant has given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and Assessment Level 3, the highest assessment level for the applicant. Accordingly, the applicant satisfies the requirements of cl.572.223(2)(a).
Access to funds – cl.572.223(2)(c)
The Tribunal must also be satisfied that, while holding the visa, the applicant will have access to the funds demonstrated or declared in accordance with the Schedule 5A requirements relating to financial capacity.
As the Netbank saver account is in the name of the applicant, the Tribunal accepts on the basis of this evidence that the applicant will have access to the funds held by himself.
On the evidence before it, the Tribunal is prepared to accept that, while holding the visa, the applicant will have access to the funds demonstrated or declared in accordance with the Schedule 5A requirements relating to financial capacity. The applicant therefore meets cl.572.223(2)(c).
CONCLUSIONS
As the Tribunal has found the applicant meets the requirements of cl.572.223(2)(a) and (c) it will remit the matter to the delegate for reconsideration.
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); and
·cl.572.223(2)(c) of Schedule 2 to the Regulations.
Gabrielle Cullen
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.
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Immigration
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Administrative Law
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Statutory Interpretation
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Judicial Review
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