1603567 (Migration)

[2016] AATA 4428

1603567 (Migration) [2016] AATA 4428 (15 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Miriam Oguchukwu Iwunna

CASE NUMBER:  1603567

DIBP REFERENCE(S):  BCC2014/3467859

MEMBER:Alison Mercer

DATE:15 September 2016

PLACE OF DECISION:  Melbourne

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) of Schedule 2 to the Regulations.

Statement made on 15 September 2016 at 5:08pm

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 15 January 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 17 December 2014. 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 her enrolment in a Certificate IV in Disability. The visa was refused because the applicant did not provide the evidence required to demonstrate she was a genuine student as required by cl.572.223 of Schedule 2 to the Regulations. In particular, the delegate found that the applicant had failed to demonstrate the required financial capacity applicable to her in Schedule 5A to the Regulations and thus did not meet cl.572.223(2)(a).

4. The applicant sought review of that decision with the Tribunal on 29 January 2015.  A hearing was held on 8 October 2015, at which the applicant gave evidence that (amongst other things) she completed the Certificate IV in Disability in mid-2015 and had been going to commence a Diploma of Youth Work.  However, she gave birth to her son around this time and could not commence the Diploma.  She was enrolled to undertake the Diploma of Youth Work in January 2016, which was the next intake of the course.  The applicant provided evidence of her financial capacity during and after the hearing, including evidence that purported to relate to funds provided by her brother living in Germany.

5. On 16 November 2015, the Tribunal affirmed the decision to refuse to grant the applicant a Class TU subclass 572 visa as it found that she did not meet cl.572.223(2)(a).  The Tribunal was not satisfied that the applicant met the relevant Schedule 5A financial capacity requirements applicable to her (being those for assessment level 3).  In summary, the Tribunal calculated the funds the applicant had to demonstrate were $29,032 (being her outstanding tuition fees and living expenses for her and her son for the first 12 months, plus return travel fees).  However, the Tribunal found the financial documents provided by the applicant were insufficient for it to be satisfied that the person holding the funds was the applicant’s brother, or that the funds in a combination of bank accounts held by him had a balance of at least $29,032 in the 3 months immediately prior to her visa application and continuously up until the time of the Tribunal’s decision.

6. The applicant sought review of this decision in the Federal Circuit Court of Australia (FCCA).  On 11 March 2016, the FCCA remitted by consent the Tribunal’s decision, on the basis that the Tribunal misconstrued the requirements of cl.5A408(2) of Schedule 5A to the Regulations, and in particular the requirements of subclause (aa) of the definition of ‘funds from an acceptable source.’

7. The matter was constituted to a Tribunal Member on 1 June 2016.  On 1 July 2016, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act to invite her to provide information.  The Tribunal noted that her visa application was refused because the delegate determined that she did not meet the financial requirements contained within cl.572.223(2)(a) of Schedule 2 of the Regulations and Part 4 of Schedule 5A.  The Tribunal noted that it had to now reconsider the same criteria.  The Tribunal further noted that, as found in the previous decision, it was satisfied that:

   ·the applicant had a current Confirmation of Enrolment for a Diploma of Youth Work with a start date of 1 January 2016 and an end date of 31 December 2016, the total course fees for which were $10,800 of which she had pre-paid $5,400 at the time of the previous Tribunal decision in November 2015; and

   ·the applicant met the relevant English and educational requirements in Part 4 of Schedule 5A applicable to her.

8. The Tribunal invited the applicant to provide information that demonstrated that she met cl.572.223(2)(a), which in turn required her to meet cl.5A408 of Schedule 5A in relation to her financial capacity.  The Tribunal noted that it had recalculated the funds from an acceptable source that she had to demonstrate as follows:

   ·outstanding tuition fees: $5,400 (based on total fees of $10,800 minus prepaid fees of $5,400);

   ·living costs for her (for period late July 2016 to late January 2017) of $9,305 (6 months pro rata amount of prescribed annual costs of $18,610);

   ·living costs for the applicant’s son (20% of hers) of $1,861; and

   ·return travel costs of (say): $1,300

   ·TOTAL: $17,866

9. The Tribunal noted that if the applicant disagreed with the above calculations, she should provide an explanation of why, together with relevant supporting documentation and her calculation of the funds required to be demonstrated.

10. The Tribunal further noted that the applicant had to demonstrate that the funds in this amount were held by an acceptable individual for at least 3 months prior to her visa application (that is, 17 September 2014 to 17 December 2014) if she were relying on funds in the form of a money deposit.  The Tribunal acknowledged that there was no necessity for the applicant or another acceptable individual to have held funds amounting to $17,866 throughout the period from 17 December 2014 to date if she were relying on a money deposit.  The Tribunal requested that the applicant provide information in writing that she met the above requirements, including clear evidence of the identity of any other individual holding funds or providing a loan to establish that they were an acceptable individual for the purposes of Schedule 5A, and clear evidence of the money deposit or loan relied upon (and in the case of a money deposit, or deposits, that it was held for the required period prior to her application).

11. The Tribunal further noted that the applicant had to meet cl.572.223(2)(c), which provided that the Minister (or in this case, the Tribunal) had to be satisfied that, while the applicant held the visa, she would have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to her financial capacity.  Accordingly, the Tribunal invited her to provide additional information demonstrating that cl.572.223(2)(c) was satisfied, such as information demonstrating that she would have access to funds referred to above. 

12. The information was requested by 15 July 2016. On 12 July 2016, the applicant sought an extension of time to provide the information requested.  On 28 July 2016, the Tribunal received the following documents from the applicant:

    ·letter from Chido Paul Iwunna, dated 1 January 2015, stating that he is the applicant’s older brother and a German citizen.  He states that he will take care of her financial needs throughout her stay in Australia;

    ·copy of biodata page of Chido Paul Iwunna’s German passport;

    ·copy of First Bank statement for Iwunna Chido Paul for period 2 February 2014 to 2 February 2015;

    ·copy of receipt dated 26 July 2016 issued to the applicant (‘student’) for payment of $5,400 into STRATA Payment Clearing Account;

    ·Sparkasse Bochum Bank term deposit account, holders listed as married couple Chido Paul and Judith Iwunna, with balance of 13,384.74 Euros as at 3 February 2015 (and English translation);

    ·Sparkasse Bochum Bank statement for account held by Chido Paul and Judith Iwunna showing account balance as at 3 October 2014 of 27,882.65 Euros [approximately AUD $41,364.83]; at 25 November 2014 of 13,023 Euros [approximately AUD $19,319.58]; at 20 January 2015 of 11,285 Euros [approximately AUD $16,741.91] and at 3 February 2015 of 12,182.83 Euros approximately AUD $17,994] (and English translation);

    ·letter from Chido Paul Iwunna dated 3 February 2015 stating that he is a client of the German bank Sparkasse Bochum and has attached statements for his account, the current balance of which is 12,128.83 Euros [approximately AUD $17,994: >

    On 24 August 2016, the Tribunal wrote to the applicant asking her to provide evidence that she and Chido Paul Iwunna were siblings, confirmation (preferably from her education provider) that the receipt for the $5,400 she paid on 26 July 2016 represented the balance of the course tuition fees, and if not, clear evidence of the remaining balance, evidence of her brother’s current bank balance(s) and that she had and would continue to have access to these funds for the duration of her proposed study in Australia.

13. On 13 September 2016, the applicant provided the following documents to the Tribunal:

    ·her bank account statement for the period 30 June 2016 to 10 September 2016 showing regular internet transfers ranging from $200 to $1,000 into her account over this period;

    ·scanned copy of birth certificate of Chido Paul, born 30 September 1969, listing his parents as Patrick Iwunna Duruzkuzuruahu (father) and Anastesia Duruzkuzuruahu (mother);

    ·declaration dated 4 August 2010 by Hippolyte U Iwunna, stating that he is the older brother of the applicant, who was born 15 March 1980, to parents Duruzkuzuruahu Patrick Iwunna (father) and Duruzkuzuruahu Anastesia (mother) and that he is providing the declaration because the applicant’s birth certificate has been misplaced;

    ·screen shot of mobile phone (apparently the applicant’s) showing 2 texts advising that Chido has sent $AUD and funds will be credited to the applicant’s account shortly;

    ·remittance schedule from Chisholm Institute for the applicant showing that she has no outstanding fees in relation to her Diploma of Youth Work, issued 25 August 2016; and

    ·FirstBank bank statement for the Iwunna Chido Paul showing balance of 3,958,958 Nigerian naira [approximately AUD $16,803] as at 2 June 2016.

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

15. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

17. In this case, the applicant holds a passport of Nigeria.  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.

18. 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.

    English proficiency requirements

19. The Tribunal has reviewed the Department’s file and is satisfied that the applicant provided an International English Language Testing System (IELTS) test report form issued to the applicant on 18 December 2014 indicating that she obtained an overall band score of 6 in a test she undertook on 6 December 2014.  The Tribunal is satisfied that she therefore meets cl.5A407(a) of Schedule 5A in relation to her English proficiency, as there is no evidence that she will undertake, or has undertaken, an ELICOS course prior to her Diploma, and she achieved an overall band score of at least 5.5 in an IELTS test undertaken less than 2 years before she made the current visa application on 17 December 2014.

    Financial capacity requirements

20. As set out above, the Tribunal calculated at the time of its s.359(2) letter dated 1 July 2016 that the applicant was required to demonstrate that she has, or has access to, funds of AUD $17,866 for her outstanding course fees, living costs for herself and her baby and return travel costs, assuming that the relevant period was from late July 2016 to late January 2017 (approximately 1 month after the anticipated completion date of the course).  The Tribunal has reviewed these calculations and reduced the living costs to reflect the time that has elapsed since the Tribunal’s letter, and also the fact that the applicant has now paid the balance of her outstanding tuition fees.  The funds calculated by the Tribunal at the time of this decision are as follows:

    ·     outstanding tuition fees: $0;

    ·     living costs for the applicant (pro rata of $18,610 for 12 months; that is from late September 2016 to late January 2017, a period of 4 months): approximately $6,203;

    ·     living costs for the applicant’s infant son (20% of her living costs): approximately $1,241;

    ·     return travel costs (say) $1,300;

    ·     TOTAL: $8,744 [approximately 5,801 Euros, or 2,057,474 Nigerian naira, according to xe.com as at 15 September 2016]

21. As the applicant made no claims and provided no evidence of being fully or partly funded by a government agency or her education provider, the relevant part of Schedule 5A, Division 3 of Part 572, requires that she demonstrates funds equivalent to at least AUD $8,744 from an acceptable source, being either:

    ·a money deposit (or deposits) held by an acceptable individual (or individuals).  In the case of an applicant who has not completed 75% of their principal course, there is an additional requirement that the money deposits have been held for at least 3 months prior to the visa application date (see cl.5A408(2)(aa)); or

    ·a loan from a financial institution made to, and held in the name of, an acceptable individual (see cl.5A408(2)(b)).

22. There is no evidence before the Tribunal to indicate that the applicant has completed 75% or more of her course and therefore, any money deposit(s) relied upon must have been held for at least 3 months prior to her visa application on 17 December 2014.

23. The applicant relies upon money deposits held by her brother, Paul Chido Iwunna.  The Tribunal is satisfied from the documentary evidence now provided to the Tribunal that Paul Chido Iwunna is the applicant’s brother, and that he is an acceptable individual for the purposes of this part.

24. The Tribunal is further satisfied that Paul Chido Iwunna held the equivalent of at least AUD $8,744 in his Sparkasse Bochum bank account in the 3 month period immediately before the applicant’s visa application on 17 December 2014, based on the bank statements from him provided which indicate the Sparkasse Bochum account balance for the account held by him and his wife was 27,882.65 Euros as at 3 October 2014 [approximately AUD $41,364.83] and at 25 November 2014 was 13,023 Euros [approximately AUD $19,319.58].

25. The Tribunal is satisfied that Paul Chido Iwunna currently holds the equivalent of at least AUD $8,744 in his FirstBank account, based on the bank statement provided by him showing balance of 3,958,958 Nigerian naira [approximately AUD $16,803] as at 2 June 2016.

26. The Tribunal therefore finds that the applicant meets cl.5A408 and thus meets the financial capacity requirements for her assessment level and course in Schedule 5A of the requirements. 

27. Other requirements

28. The Tribunal has reviewed the Department’s file and is satisfied that the applicant has provided evidence that she completed the West African Senior School Certificate Examination in 1996.  It is further satisfied that she is currently enrolled in a vocational education and training course.  It finds that she therefore meets cl.5A409 of Schedule 5A.

29. On the basis of the above, the Tribunal finds that the applicant has given evidence in accordance with the applicable Schedule 5A requirements, and therefore satisfies cl.572.223(2)(a).

30. 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

31. 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) of Schedule 2 to the Regulations.

    Alison Mercer

    
    

    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.

    Schedule 5A – Part 572 (Vocational Education Training Sector)

    …

    Division 3 - Requirements for assessment level 3

    Clause 5A407      English language proficiency

    [5A407]      The applicant must give evidence that one of the following applies:

    (a)      the applicant:

    (i)      will not undertake an ELICOS before commencing his or her principal course; 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 5.5;

    (b)      the applicant:

    (i)      will undertake an ELICOS of no more than 30 weeks duration before commencing his or her principal course; 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 4.5;

    (c)      the applicant:

    (i)      is fully funded; and

    (ii)      has a level of English language proficiency that satisfies his or her proposed education provider; and

    (iii)      if the applicant is to undertake an ELICOS before commencing his or her principal course — will undertake an ELICOS of no more than 30 weeks duration;

    (d)      the applicant had, less than 2 years before the date of the application:

    (i)      successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted:

    (A)      in Australia; and

    (B)      in English; or

    (ii)      successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that:

    (A)      is specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (B)      was conducted outside Australia; and

    (C)      was conducted in English; or

    (iii)      as the holder of a student visa — successfully completed a substantial part of a course (other than a foundation course) that:

    (A)      was conducted in English; and

    (B)      was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

    (iv)      successfully completed a substantial part of a course that:

    (A)      is specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (B)      was conducted outside Australia; and

    (C)      was conducted in English; and

    (D)      was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

    (v)      successfully completed a foundation course that was conducted:

    (A)      in Australia; and

    (B)      in English; or

    (vi)      successfully completed a course in foundation studies that:

    (A)      is specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (B)      was conducted outside Australia; and

    (C)      was conducted in English;

    (e)      the applicant achieved, less than 2 years before the date of the application, the required score in a test that is specified in a legislative instrument made by the Minister under clause 5A102;

    (f)      the applicant has:

    (i)      a level of English language proficiency that satisfies the applicant’s proposed education provider; and

    (ii)      at least 5 years of study in English undertaken in 1 or more of the following countries:

    (A)      Australia;

    (B)      Canada;

    (C)      New Zealand;

    (D)      South Africa;

    (E)      the Republic of Ireland;

    (F)      the United Kingdom;

    (G)      the United States of America.

    Clause 5A408      Financial capacity

    [5A408] (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.

    [5A408] (1A)      If the applicant is:

    (a)      fully funded; or

    (b)      an applicant:

    (i)      who is not funded, wholly or partly, by:

    (A)      the Commonwealth Government, or the government of a State or Territory; or

    (B)      the government of a foreign country; or

    (C)      a multilateral agency; and

    (ii)      who proposes to undertake a course of study that is, or courses of study that are together, of a duration of less than 12 months; and

    (iii)      for whom, if applying in Australia, the proposed period of stay will result in the applicant’s total period of lawful stay in Australia being less than 12 months; or

    (c)      the subject of an arrangement by which the course fees, living costs and travel costs for the primary person’s full period, assessed for the primary person alone, will be met by:

    (i)      a provincial or state government in a JD_legend_current_mrPop06841foreign country, with the written support of the government of that country; or

    (ii)      an organisation specified in a legislative instrument made by the Minister for this paragraph;

    the applicant must give evidence that the applicant has access to funds that are sufficient to support each member of the applicant’s family unit who is not a family applicant.

    [5A408] (2)      In this clause:

    financial support, from an applicant’s proposed education provider, means:

    (a)      a scholarship that:

    (i)      is awarded on the basis of merit and an open selection process; and

    (ii)      is awarded to a student who is enrolled in a course leading to a Certificate IV qualification or a higher qualification; and

    (iii)      is awarded to the greater of:

    (A)      not more than 10% of overseas students in a course intake; and

    (B)      not more than 3 overseas students in a course intake; or

    (b)      a waiver of the applicant’s course fees carried out in the following circumstances:

    (i)      the applicant is part of an exchange program that involves:

    (A)      a formal agreement between an education provider and an education institution in a foreign country; and

    (B)      the reciprocal waiver of course fees as part of that agreement;

    (ii)      the applicant proposes to study full-time;

    (ii)      the applicant’s proposed studies will be credited to a course undertaken by the applicant in the applicant’s home country.

    funds from an acceptable source means one or more of the following:

    (a)      if the applicant:

    (i)      has successfully completed at least 75% of the requirements for his or her principal course; and

    (ii)      has applied for the visa in order to complete the course; and

    (iii)      does not propose to undertake any further course;

    a money deposit held by an acceptable individual;

    (aa)      if paragraph (a) does not apply — a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application;

    (b)      a loan from a financial institution made to, and held in the name of, an acceptable individual;

    (c)      a loan from the government of the applicant's home country;

    (d)      financial support from:

    (i)      the applicant's proposed education provider; or

    (ii)      the Commonwealth Government, or the government of a State or Territory; or

    (iii)      the government of a foreign country; or

    (iv)      a corporation that:

    (A)      conducts commercial activities outside the country in which it is based; and

    (B)      employs the applicant in a role in relation to which the applicant's principal course is of direct relevance; or

    (v)      a multilateral agency; or

    (vi)      a provincial or state government in a foreign country, provided with the written support of the government of that country; or

    (vii)      an organisation specified by the Minister in an instrument in writing for this subparagraph; or

    (viii)      an acceptable non-profit organisation.

    ·  

    Clause 5A409      Other requirements

    [5A409]      The applicant must give evidence:

    (a)      that he or she has successfully completed secondary schooling to the year 11 level (or its equivalent); and

    (b)      that:

    (i)      he or she is enrolled in a vocational education and training course; or

    (ii)      he or she is enrolled in a course that is a pre-requisite to a vocational education and training course and a vocational education and training course; or

    (iii)      he or she is enrolled in a course that is a pre-requisite to a vocational education and training course and has an offer of a place in a vocational education and training course.