1602755 (Migration)

[2016] AATA 4766

1602755 (Migration) [2016] AATA 4766 (2 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Maninder Pal Singh Tamber

CASE NUMBER:  1602755

DIBP REFERENCE(S):  BCC2015/8333552

MEMBER:Geraldine Hoeben

DATE:2/12/16

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 572 Vocational Education and Training visa:

·cl.572.223 (2) (c) of Schedule 2 to the Regulations.

Statement made on 02 December 2016 at 3:33pm

CATCHWORDS

Student (Temporary) (Class TU) visa – Subclass 572 – cl 572.223 – Genuine student – Financial capacity – Advanced Diploma of Accounting – Bank details verified

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, cl. 572, r.1.40A

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 17 February 2016 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, who arrived in Australia on 24/04/09, applied for the visa on 12 November 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).

3. In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment at assessment level 3 courses. The visa was refused because the applicant has not provided the evidence required to demonstrate he was a genuine student as required by cl.572.223 (2) (c ) of Schedule 2 to the Regulations that he could not provide evidence of financial capacity totalling $26,726.00.

4. The applicant appeared before the Tribunal, via telephone, on 01/12/16 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review by his registered migration agent (MA) 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 enrolled in an Advanced Diploma of Accounting 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.

8. 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.

9. On the evidence before the Tribunal, the applicant in this case is, and was at time of application, an eligible VET student who has a COE for each relevant course of study.  The applicant is currently enrolled in an eligible advanced diploma at the New England Institute of technology, which is an eligible education provider: IMMI 14/003. To meet cl.572.223 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 finds to meet the costs and expenses during the proposed stay. 

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

10. 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.

11. The applicant confirmed that he arrived in Australia on 24/04/09. The Tribunal repeated the required sum of $26,726 to cover his living costs and expenses that he would need to have access to in order to complete his current course being, the advanced diploma of accounting.

12. The Tribunal noted that the applicant had maintained a continuous stream of course attendance consistent with his visa conditions and that he had the relevant COEs. The Tribunal raised with the applicant his course of studies and the data contained within his PRISMS record which confirms that the applicant satisfies his English language requirements. He concurred with its contents.

13. The Tribunal referred to the MA’s submission which contained, inter alia, photocopies of the applicant’s  passport which disclosed the identity of his father and his father’s name, an affidavit dated 07/01/15 certified by a JP of the applicant’s parents indicating that the father is allowing his son access to approximately an amount equal to $34,000 to support him towards his current education in Australia which is also made up of a loan from the State Bank of Patiala also dated 07/12/15. The Tribunal also notes to a whom it may concern letter dated again 07/12/15 from the same bank which indicates that it has increased the applicant’s overdraft limit to assist the father in the support of his son’s education in Australia.

14. The Tribunal raised its concerns about the lack of an address for the bank which, while it contained the suburb, telephone and fax, it did not contain a specific address.

15. The Tribunal also noted that the loan given to the father was stated in rupees and that this need to be verified by the applicant in AUS dollars. The applicant replied that the amount stated in the bank letter, including the extended overdraft amount, totalled approximately $34,000.

16. The Tribunal also raised with the applicant that it would need a statutory declaration that the applicant had access to the father’s funds provided by the bank.

17. The Tribunal raised the issue that as the applicant had only recently commenced his advanced diploma course on 08/08/16 it would need an attendance transcript, subject progress so far plus a letter from the applicant’s educational service provider indicating attendance was being maintained regularly and that progress in the applicant’s subjects was proceeding as normal.

18. As a result of the above the Tribunal directed that the applicant provide by 12pm on 02/12/16 a certified attendance transcript of the advanced diploma, progress of subjects so far, the full address of the Patiala Bank and a statutory declaration that the applicant had access to the father’s funds as previously stated above.

19. The applicant’s MA kindly provided the documents as requested on the relevant date. The Tribunal finds together with the information already provided by the applicant during the course of the hearing, that its concerns were satisfactorily answered by these certified documents and accepts the genuineness of them and that they represent what they purport to state. In particular the statutory declaration states that the funds made available to the applicant is in the sum of approximately $32,000 well above the required sum of $26,726.

20. The Tribunal finds that, based on all the above, the applicant has the relevant financial capacity to meet his living costs and expenses to complete his current course being the advance diploma of accountancy due for completion on 08/08/17.

21. As the Tribunal is satisfied the applicant will have access to the relevant funds, cl.572.223(1A)(c) is met.

    CONCLUDING PARAGRAPHS

22. 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

23. 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) (c) of Schedule 2 to the Regulations.

    Geraldine Hoeben

    
    

    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.