Abrol (Migration)

[2018] AATA 2483

Abrol (Migration) [2018] AATA 2483 (5 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Neha Abrol
Mr Parvinder Singh

CASE NUMBER:  1620986

DIBP REFERENCE(S):  BCC2016/1526487

MEMBER:Stephen Conwell

DATE:5 June 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 572 Vocational Education and Training visa:

· cl.572.223(1A) (a), (b) and (c) of Schedule 2 to the Regulations.

Statement made on 05 June 2018 at 11:22am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Evidence of English language proficiency – IELTS test score – Completion of secondary schooling – Sufficient funds – Money deposit – Affidavit from applicant’s grandfather – Genuine access to the money – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.42, Schedule 2 cls 572.111, 572.223, Schedule 5 cls 5A101, 5A407, 5A409

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 (the delegate) on 23 November 2016 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 20 April 2016. 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 refused to grant the visas was because the first-named applicant (the ‘applicant’) failed to provide documentation or information proving her English language proficiency as required by cl.572.223(1A) of Schedule 2 to the Regulations.

4. The application was scheduled for Hearing on 15 May 2018, however the Tribunal determined it was able to find for the applicant “on the papers”.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. In the present case, as the applicant is currently enrolled in an Advanced Diploma of Hospitality Management as her principal course, the subclass that may be granted is Subclass 572. The issue in the present case is the failure of the applicant to provide the delegate with proof of English language proficiency. 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. Secondary applicants need only satisfy the secondary criteria.

7. 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.

8. 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 Victorian Institute of Culinary Arts & Technology (VICAT), which is an eligible education provider: IMMI 16/003.  To meet cl.572.223 therefore, the applicant must give evidence that she has 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 meet the applicable evidentiary requirements in Schedule 5A?

9. 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.

10. 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. In this case, the highest assessment level to which the applicant is subject is assessment level 3.

11. The evidentiary requirements for this assessment level for Subclass 572 are set out in Schedule 5A, specifically cl.5A407 to cl.5A409.

    English language proficiency – clause 5A407

12. The evidence indicates that the applicant achieved an overall band score of 6.0 in an IELTS test dated 11 November 2017. The Tribunal is therefore satisfied that less than two years before the date of the application the applicant achieved in an IELTS test an overall band score of at least 5.5. The applicant therefore meets clause 5A407(a).

13. Accordingly, the Tribunal finds that the applicant meets clause cl. 5A407.

    Other requirements - clause 5A409

14. Clause 5A409 requires that the applicant provide evidence that she 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.

15. The applicant has provided evidence of her Matriculation and Senior Secondary School certificates issued by the Punjab School Education Board. Her evidence also confirms that she  has completed Certificates III and IV in Commercial Cookery and a Diploma of Hospitality Management. The Department’s guidelines state that ‘under policy, a Certificate III awarded under the AQF is considered equivalent to Year 11 and a Certificate IV is considered equivalent to Year 12’. The Tribunal therefore finds that the applicant meets the requirement of completing secondary school or its equivalent to the year 11 level.

16. As the applicant has provided evidence of completing secondary schooling to the Year 11 level or equivalent and is enrolled in an Advanced Diploma of Hospitality Management, the Tribunal finds that she meets clause 5A409.

    Financial capacity requirements - clause 5A408

17. The applicant is required to give evidence of funds from an acceptable source that are sufficient to meet her course fees and living costs for the first 12 months. School costs are not relevant in this case as the applicant does not have any school age dependent children. 

    The ‘first 12 months’

18. 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.

19. In this case the first 12 months begins on the expected date of visa grant, which is approximately 29 June 2018. 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.

20. The applicant’s principal course, the Advanced Diploma of Hospitality Management has a proposed end date of 13 July 2018. This is a period of two weeks. Adding six weeks to allow the applicants time to arrange their departure from Australia will result in a period of two months for calculation purposes.

    Course fees

21. ‘Course fees’ are defined in Clause 5A101. The evidence indicates the applicant has paid $1,000 towards the total cost of Advanced Diploma of Hospitality Management, being $4,000. The Tribunal finds the applicant’s outstanding course fees in the first 12 months is $3,000.

    Living costs

22. ‘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 2 months, the Tribunal finds the living costs for the applicant will be $3,102.

    Travel costs

23. ‘Travel costs’ are defined in Clause 5A101. The applicant’s home country is India. The cost for one economy one way ticket from Tasmania to India varies but is approximately $1,000.

    Total costs

24. In accordance with clause 5A408, the Tribunal finds that the applicant’s total course fees, and both applicants’ living costs and travel costs for the first 12 months are as follows:

12 Months	2 Months (pro rata)
Outstanding Course fees	$3,000	$3,000
Living costs – main applicant	$18,610	$3,102
Living costs – secondary applicant	$6,514	$1,086
Travel costs (both applicants)	$2,000	$2,000
Total	$30,124	$9,188

1. Based on a calculation of 2 months, the applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $9,188.

   Funds from an acceptable source

2. ‘Funds from an acceptable source’ is defined in subclause 5A408(2).

3. As the applicant has completed 75% of the course, she is required to show a money deposit held by an acceptable individual or a loan from a financial institution made to, and held in the name of, an acceptable individual.

4. The applicant has provided evidence of a money deposit in the name of the Ashok Kumar held with the Punjab National Bank for 120 months from 26 May 2014 to 26 May 2024. The money deposit is 2,500,000 INR (25 Indian Lakh), equivalent to approximately $48,911 AUD in current exchange rates.

5. The Tribunal finds that Punjab National 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. An Affidavit of Support from the applicant’s grandfather confirms his support for the applicant’s study and stay in Australia.

6. The Tribunal accepts that Ashok Kumar is the applicant’s grandfather, who is an acceptable individual under the regulations. The Tribunal is therefore satisfied that the applicant has provided evidence of a money deposit held by an acceptable individual that are sufficient to meet her expenses for course fees, living costs and travel costs for the 2 months calculated to be necessary for the applicant to complete her course and make arrangements for both applicants to quit Australia.  In fact the money deposit is sufficient to the applicants’ costs and expenses for the first 12 months. The applicant therefore meets cl.5A408(1)(a) and cl.5A408(1)(b).

7. The applicant has provided the Tribunal a declaration in the visa application stating that she has access to funds from an acceptable source that are sufficient to meet her costs for the remainder of her stay in Australia. Also provided is an Affidavit of Support from the applicant’s grandfather indicating he will support the applicant’s study and stay in Australia. The applicant therefore meets cl.5A408(1)(aa).

8. The applicant must also show that the regular income of any individual providing the funds to her is sufficient to accumulate the level of funding being provided to that individual. On the basis that the applicant’s sponsor is her grandfather and the money represents his retirement savings, the Tribunal is satisfied that his retirement savings 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.5A408 (1)(c).

9. The Tribunal is therefore satisfied that the applicant clause 5A408 of Schedule 5A in relation to financial capacity.

   Conclusion – Schedule 5A

10. 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)

11. 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.

12. The Tribunal accepts the evidence of the applicant that she has genuine access to her grandfather’s money deposit. Based on her current COE she will complete her studies in two more months, therefore the Tribunal finds that the applicant has genuine access to the funds.

13. 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

14. As the Tribunal has found the applicant meets the requirements of cl.572.223(1A) it will remit the matter to the delegate for reconsideration.

    DECISION

15. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 572 Vocational Education and Training visa:

    ·cl.572.223(1A) (a), (b) and (c) of Schedule 2 to the Regulations.

    Stephen Conwell
    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.