1517746 (Migration)

[2016] AATA 4813

1517746 (Migration) [2016] AATA 4813 (7 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms NEHA NEHA

CASE NUMBER:  1517746

DIBP REFERENCE(S):  BCC2015/2124334

MEMBER:Gina Towney

DATE:7 December 2016

PLACE OF DECISION:  Sydney

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

Statement made on 07 December 2016 at 3:43pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 – Not a genuine student – Financial capacity – Assessment level 3 – Additional documents not provided

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.40A, r 1.42, r 1.03, Schedule 5A, cl 572.223(2)(a)

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

2. The applicant applied for the visa on 24 July 2015. The course listed in the application was a Diploma of Early Childhood Education and Care, with course dates from 3 August 2015 to 8 October 2017.

3. 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 applicant against the criteria for a Subclass 572 visa on the basis of enrolment in Diploma of Early Childhood Education and Care. 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 of Schedule 2 to the Regulations.

5. The delegate’s decision recorded that the applicant had applied for the student Visa on 24 July 2015, and on 28 July 2015 the department had requested evidence of financial capacity, being the amount of $25,000 (all currency will be Australian unless otherwise stated). In response the applicant provided evidence of financial capacity in the form of documents from Indian, and in response the Department had undertaken investigations in relation to the documents provided. As a result the department found the applicant did not satisfy the schedule 5A financial requirements.

6. More specifically the delegate noted that the applicant had provided both a Fixed Term Deposit and a Demand Draft, (and assumed the latter was reliant upon the former), as evidence of her financial capacity. In relation to the Fixed Term Deposit, the delegate found that the overseas post had made enquiries with the relevant bank, in that it had called three different branches of the bank named in the financial document, being the Punjab National Bank, and all had stated the fixed deposit did exist.  As a result they concluded that the document was considered non-genuine.

7. The delegate’s decision also noted that on 29 September 2015 it wrote to the applicant and gave her the opportunity to respond to the information outlined in the paragraph above, but as at the date of decision on 11 December 2015 it had not received a reply. The applicant then appealed to the Tribunal, and provided a copy of the departmental decision.

8. In correspondence dated 10 August 2016 the tribunal wrote to the applicant and invited her to attend the hearing on 27 October 2016. The same correspondence asked the applicant to provide, amongst other documents, documents to demonstrate she had sufficient funds, or access to funds, to pay the course fees, living costs and relevant travel costs as well as evidence of fees outstanding, and evidence of funds from an acceptable source.

9. In addition, on 25 October 2016 the tribunal wrote to the applicant, through her migration agent, and reminded her that she needed to provide evidence of financial capacity including living costs of $18,610 per annum, outstanding course costs of $16,450, and travel costs of $1000.

10. On the morning of the hearing the applicant made submissions to the Tribunal (sent after business hours the night before), including evidence of her past studies, the payment of fees in relation to her Diploma of Early Childhood Education and Care, a notice of assessment from the both the 2015 and 2016 financial years, and two new certificates of enrolment. The certificates of enrolment were in relation to a Diploma of Business, with course dates from 5 December 2016 to 2 July 2017, and an Advanced Diploma of Business, with course dates from 3 July 2017 to 28 January 2018.

11. The applicant appeared before the Tribunal on 27 October 2016 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent, although the agent did not attend the hearing.

12. During the hearing the Tribunal reiterated that the applicant was required to satisfy schedule 5A, that this was the same issue on which her application was refused by the Department. In light of the applicant’s evidence that she had completed her Diploma of Early Childhood Education and Care, and the provision of two new Certificates of Enrolment to the Tribunal, the tribunal recalculated the applicant’s requirements in relation to financial capacity, and clearly set these out for the applicant.

13. The requirements, as per the tribunal’s calculations are as follows: the applicant is required to show access to $18,610 (being the set living costs), $7000 in course fees (being the course fees recorded on the two Certificates of Enrolment, both of which will commence within the first 12 months, an estimated travel costs of $1000. This makes a total of $26,610.

14. At hearing the Tribunal noted that the applicant appeared to have satisfied the English language requirements, through the provision of her Advanced Diploma in Management, and the other requirements, through attaining her Higher School Certificate whilst in India.  Therefore the only issue outstanding was financial capacity.

15. During the hearing the applicant requested additional time to provide financial capacity evidence. The tribunal allowed a period of 28 days, as requested by the applicant, but also noted that the applicant had been on notice of this issue since the departmental decision (dated 11 December 2015), and again since the hearing in the was sent on 10 August 2016.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. In the present case, as the applicant currently has an offer of enrolment in an Advanced Diploma of Business 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.

18. 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.

19. 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. 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?

20. 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.

21. In this case, the applicant holds a passport of India.  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].  The applicant is also proposing to undertake a Diploma of Business, which is not an ELICOS, which has an assessment level of 3 specified for the applicant’s passport: IMMI [14/014].  In this case, the highest assessment level to which the applicant is subject is assessment level 3.

22. 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. In relation to financial capacity, the applicant was required to show access to funds of $26,610. As outlined above these costs were calculated as the sum total of $18,610 (being the set living costs), $7000 in course fees (being the course fees recorded on the two Certificates of Enrolment, both of which will commence within the first 12 months, an estimated travel costs of $1000.

23. The issue of financial capacity was the issue before the delegate, and the applicant was reminded that this continued to be the issue both prior to and during the hearing. The applicant was given 28 days to provide additional documents in support of her application after the hearing, but has failed to do so. As the Tribunal does not have evidence before it to show the applicant satisfies the financial capacity criteria, it must conclude that the applicant does not satisfy the criteria.

24. In making this finding the Tribunal acknowledges that the applicant has previously provided financial capacity information, but that the accounts referred to have been found not to have existed in inquiries made by overseas post. As such, in the current circumstances, the tribunal is unable to rely on this information to find the applicant satisfies the financial capacity criteria.  Again, as noted above, as the applicant has failed to provide any further information the tribunal concludes the applicant does not satisfy the financial capacity criteria. 

25. 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).

26. 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

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

    Gina Towney

    
    

    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.