1517033 (Migration)

[2016] AATA 3899

1517033 (Migration) [2016] AATA 3899 (19 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ROYLE REGIE DIGAMO

CASE NUMBER:  1517033

DIBP REFERENCE(S):  BCC2015/3025393

MEMBER:Lilly Mojsin

DATE:19 May 2016

PLACE OF DECISION:  Sydney

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.572.223(2) of Schedule 2 to the Regulations.

·cl.573.225 of Schedule 2 to the Regulations.

Statement made on 19 May 2016 at 2:33pm

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 7 December 2015 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 573 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 16 October 2015. On 23 October 2015, the delegate contacted the applicant via email acknowledging the application and requesting additional supporting evidence. The applicant did not provide any additional evidence to the department.

3. The delegate refused to grant the visa on the basis that the applicant had not met the financial, English language proficiency and health requirements and therefore did not meet cl. 573.223(2) and cl.573.225.

4. The applicant provided to the Tribunal the following documents

   ·Overseas Student Confirmation of Enrolment to attend University of Technology Sydney to Study a Bachelor of Nursing commencing on 4 February 2016 and ending on 31 December 2017

   ·Personal  timetable

   ·Letter of Offer from UTS dated 31 July 2015, providing details of course fees and commencement

   ·Certificate 4 in Aged Care from Astute Training

   ·Statement of Attainment from Bridge Business College

   ·Receipt for payments of $7 215 and $14 410 to UTS

   ·Commonwealth Bank account in the applicant’s name

   ·EILTS test dated 20 September 2014 with an Overall Band Score of 7.5

   ·Degrees and transcript of records from Misamis University of the Philippines, Master in Nursing, Degree of Bachelor of Science in Nursing

   ·Statement from Misamis University that the applicant had completed High School in 2006

   ·Healthcare cover NIB from 18 August 2014 to 17 October 2017

5. The applicant appeared before the Tribunal, via telephone link, on 18 March 2016 to give evidence and present arguments.  The applicant was represented in relation to the review by his migration agent.

6. The applicant advised the Tribunal at the hearing that he had brought money from the Philippines and since 2014 he has been working in aged care in Winston Hills. The applicant indicated that he had not responded to the Department due to his then migration agent. The Tribunal discussed with the applicant the amount of money required in order to meet visa requirements. The applicant confirmed to the Tribunal that he had paid the course fees as indicated in the receipts provided to the Tribunal.

   REASONS AND FINDINGS

7. As the applicant is currently enrolled in a Bachelor of Nursing at UTS as his principal course, the subclass that may be granted is Subclass 573. The issue in the present application 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.572.223. 

8. The delegate was not satisfied the applicant met the criteria in cl.5A508 of Schedule 2 and therefore did not meet cl.572.223(2)(a) and cl.573.225.

9. 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?

10. 'Assessment level', in relation to a Subclass 573 visa, means the level of assessment (being level 1, 2, 3, 4 or 5) specified under Division 1.8 for a kind of eligible passport, within the meaning of r.1.40, and for an education sector: r.1.03 of the Regulations. Division 1.8 of the Regulations, which consists of r.1.40 to r.1.44, contains special provisions for student visas. Regulation 1.41 provides that the Minister must specify by Gazette Notice an assessment level for a kind of eligible passport, in relation to each subclass of student visa, to which an applicant for a student visa (other than an applicant designated under r.2.07AO) will be subject.

11. Regulation 1.42(1) provides that an applicant for a student visa is subject to the assessment level specified by the Minister, at the time of application, in relation to the relevant subclass of Student visa for the eligible passport that the applicant holds at the time of decision.

12. In the present application the Gazette Notice for r.1.41 that was in force at time of application was IMMI 14/014. In relation to Subclass 573 and a passport of the Philipines, it specifies Assessment Level 3.

    Schedule 5A requirements for Assessment Level 3

13. Division 3 of Part 5 of Schedule 5A to the Regulations specifies the requirements for Assessment Level 3 for Subclass 573. Relevantly, it provides:

14. Clause 5A507. English language proficiency

    5A507 (1) The applicant must give evidence that one of the following applies:

    (a) the applicant:

    (i) …………; 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 6.0 or the required score in an English language proficiency test that is specified in a Gazette Notice for clause 5A102 ;

15. The applicant achieved, in an IELTS test that was taken on 20 September 2014, an Overall Band Score of 7.5. As the date of application was 16 October 2015 the Tribunal finds that the applicant meets subcl. 5A507(1)(a)(ii).

    Financial Capacity

16. In regard to financial capacity, as the application was made in Australia, the applicant must demonstrate he meets cl.5A508. Clause 5A508 provides that 

    (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

    (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.

17. Clause 5A101 relevantly provides that

    first 12 months , for an applicant, means the period that:

    (a)  begins

    (i)  ………. 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.

18. The applicant is enrolled in Bachelor of Nursing commencing on 2 February 2016 to 31 December 2017.  The Tribunal has calculated costs from the end of May 2016 to the end of March 2017, being a period of 12 months. The applicant's living costs are set by the regulation at $18 610 and therefore the applicant's set living costs for a period of 12 months are $18 610.

19. In relation to the course fees, the cost of entire 2 year course is $72 639.50. The cost of the first 12 months is $36 319.75.  Evidence has been provided that $21 355 has been paid to UTS by the applicant.  This means the amount of $4974.75 is outstanding.

20. The Tribunal has estimated the applicant's travel costs to be $1 000.

21. The applicant must therefore demonstrate financial capacity in the following amounts:

Course fees	$  4 974.75
Living costs	$18 610
Travel costs	$  1 000
TOTAL	$24 584.75

1. ‘Funds from an acceptable source’ is defined in subcl. 5A508(2).  The Tribunal is satisfied that the applicant has brought his own funds from the Philippines and has been working in Australia in Aged Care. There are regular entries into his bank account. The Tribunal is satisfied that the applicant is an acceptable source. Overall the applicant needs to provide evidence of $24 584.75. A CBA Bank account indicates that the applicant had more than $24 584.75, 3 months prior to the date of application and at the date of application. He continues to hold more than $24 584.75 in his bank account.

2. The Tribunal finds that the applicant has established that he has provided evidence of 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 travel costs. The Tribunal finds that the applicant meets cl.5A508(1)(a) and cl.5A508(1)(b).

3. On the basis of the evidence, the Tribunal is also satisfied that the regular income of the applicant is sufficient to accumulate to the level of funding to be provided for the remainder of the applicant's stay in Australia. The applicant therefore meets cl.5A508(1)(c).

4. The Tribunal is therefore satisfied that the applicant meets all elements of cl.5A408 of Schedule 5A in relation to financial capacity.

5. 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.

6. As indicated above, the applicant has sufficient funds in his bank account and the Tribunal accepts that, while holding the visa, the applicant will have access to the funds demonstrated or declared in accordance with the Schedule 5A requirement.

7. 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.573.223(2)(b).

   Other requirements

8. Additionally cl. 5A509 required that the applicant must give evidence:

   (a) he or she has successfully completed secondary schooling to the year 12 level (or its equivalent).  

9. The Tribunal accepts that the applicant has completed Year 12 equivalent in the Philipines prior to commencing his Bachelor and Masters degrees at Misamis University. The applicant meets cl.5A509.

   Health Requirements

10. Clause 573.225 states:

    The applicant gives to the Minister evidence of adequate arrangements in Australia for health insurance during the period of the applicant's intended stay in Australia.

11. The applicant provided, to the Tribunal, Confirmation of Health Cover from NIB that the applicant holds medical health cover from 18 August 2014 to 17 October 2017.

12. On the basis of the above, the Tribunal is satisfied that the applicant has given evidence of adequate arrangements in Australia for health insurance during the period of his intended stay in Australia. The Tribunal therefore finds he meets clause 573.225.

13. 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

14. 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.572.223(2) of Schedule 2 to the Regulations.

    ·cl.573.225 of Schedule 2 to the Regulations.

    Lilly Mojsin
    Member