Akbar (Migration)

[2017] AATA 1835

Akbar (Migration) [2017] AATA 1835 (20 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tanveer Akbar

CASE NUMBER:  1612425

DIBP REFERENCE(S):  BCC2016/1716924

MEMBER:Penelope Hunter

DATE:20 September 2017

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:

·clause 573.223(2)(a) of Schedule 2 to the Regulations.

Statement made on 20 September 2017 at 10:31am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Genuine Student – Financial capacity – English proficiency

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2 cl 572.223, Schedule 5A cl 5A101, cl 5A504, cl 5A507. cl 5A508, cl 5A509, r 1.03, r 1.42

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 26 July 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 applied for the visa on 12 May 2016. At the time of lodgement, Class TU contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. In the present case, the delegate assessed the applicant against the criteria for a Subclass 573 visa on the basis of enrolment in a Bachelor of Accounting. The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.573.223 of Schedule 2 to the Regulations. Specifically the applicant did not provide evidence of his English language proficiency.

4. The applicant appeared before the Tribunal on 13 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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 a Bachelor of Accounting as his principal course, the subclass that may be granted is Subclass 573. 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 573, this requirement is contained in cl.573.223, which is extracted in the attachment to this decision.

8. The requirements of cl.573.223 differ depending upon whether or not the applicant is, and was at the time of application, an ‘eligible higher degree student’ who has a confirmation of enrolment (COE) in each course of study for which they are such a student. ‘Eligible higher degree student’ is defined in cl.573.111 to mean an applicant for a Subclass 573 visa who is enrolled in a bachelor’s degree or a masters degree by coursework or for visa applications made on or after 23 November 2014 an advanced diploma in the higher education sector, and any preliminary course, with an eligible education provider or, 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 has not at any relevant time been an eligible higher degree student with a corresponding COE and cl.573.223(1A) does not apply.  As such, 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. 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.

11. In this case, the applicant holds a passport of Pakistan.  The assessment level for a holder of such a passport for Subclass 573 (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.

12. The evidentiary requirements for this assessment level for Subclass 573 are set out in Part 5 of Schedule 5A.

13. The applicant has provided the following relevant evidence to support his claims;

    i.Statement from the Habib Bank for account holder Saeed Akbar for the period 7 January 2016 to 9 March 2016.

    ii.Statement from the Meezan Bank Limited for account holder Saeed Akbar for the period 8 January 2016 to 9 March 2016.

    iii.Government of Pakistan Family Registration Certificate for the applicant’s family.

    iv.IELTS test dated 4 June 2016 with overall band score of 5.5.

    v.Certificate of Completion of a Diploma of Management issued 12 September 2014.

    vi.Certificate of Completion of a Certificate IV in Business Administration issued 13 October 2015.

    vii.Certificate of Completion of an Advanced Diploma of Management issued 17 March 2015, by Austech Business Institute.

    viii.Confirmation of Enrolment (CoE) created 6 September 2017, in a Bachelor of Accounting, at the Universal Business School Sydney with course dates from 28 August 2017 to 1 May 2020.

    ix.Letter from the Bank of Punjab, dated 18 September 2017, certifying that Saeed Akbar has a finance facility of $4,275,000/rupees, and statement of account.

    English language proficiency – clause 5A507

14. The Tribunal has considered the Advanced Diploma of Management and the Certificate IV in Business Administration submitted by the applicant. The evidence before the Tribunal demonstrates that applicant has as the holder of a student visa successfully completed a substantial part of a course that lead to a qualification from the Australian Qualifications Framework at the Certificate IV level and higher. Both courses were completed less than 2 years before the date of the application. The applicant therefore satisfies clause 54507(1)(d)(ii) and therefore clause 5A507

    Other requirements- Clause 5A509

15. Clause 5A509 requires that the applicant give evidence that he has successfully completed a qualification from the Australian Qualifications Framework at the Certificate IV level or higher. The applicant has provided evidence he obtained an Advanced Diploma of Management and the Certificate IV in Business Administration. The applicant therefore meets cl.5A509(e) and in turn meets clause 5A509.

    Financial capacity requirements-clause 5A508

16. Clause 5A508 requires the applicant to give evidence of funds from an acceptable source that is sufficient to meet his course fees and living costs for the first 12 months.

    The ‘first 12 months’

17. 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.

18. In this case the first 12 months begins on the expected date of visa grant being 28 October 2017. 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.

19. The applicant’s principal course, the Bachelor of Accounting has a course end date of 1 May 2020. Therefore the relevant period is a period of 12 months, until 27 October 2018.

    Course fees

20. ‘Course fees’ are defined in Clause 5A101. Evidence from the applicant’s education provider indicates that the course fees for the total period are $31,416 and according to the CoE submitted by the applicant he has paid the sum $1,309. The total period of the applicant’s course is 21 months, and $1,496 per month. The fees therefore for a period of 12 months are assessed as $17,952. As the applicant has only paid $1,309 this does not include the 12 month period and the amount to be paid by the applicant for the purposes of this assessment is calculated as $17,952.

    Living costs

21. ‘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 12 months, the Tribunal finds the living costs for the applicant will be $18,610.

    Travel costs

22. ‘Travel costs’ are defined in Clause 5A101. The applicant’s home country is Pakistan. The cost for one economy one way ticket from Sydney to Pakistan varies but is approximately $1000.

    Total costs

23. In accordance with clause 5A508, the Tribunal finds that the applicant’s total course fees, living costs and travel costs for the first 12 months are as follows:

    Course fees $17,952.00

    Living costs  $18,610.00

    Travel costs  $1,000.00

    Total  $37,562.00

24. The applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $28,910.

    Funds from an acceptable source

25. ‘Funds from an acceptable source’ is defined in subclause 5A508(2).

26. As the applicant has not completed 75% of the course, he is required to show either a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application; or a loan from a financial institution made to, and held in the name of, an acceptable individual.

27. As there is no evidence that the applicant has completed 75% of the course, he is required to show either a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application; or a loan from a financial institution made to, and held in the name of, an acceptable individual.

28. The applicant has provided evidence loan facility at the Bank of Punjab available to Saeed Akbar. The Family Registration Certificate submitted by the applicant demonstrates that Saeed Akbar is the brother of the applicant. The brother of the applicant is an acceptable individual.

29. The loan facility is for an amount of 4,250,000 PKR which is equivalent to $50,618.00 AUS.[1] This is greater than the $37,562.00 required to meet the applicant’s expenses.

    [1]

30. The Tribunal accepts the Bank of Punjab is an acceptable financial institution.

31. The evidence indicates that the funds are available for the purpose to support the applicant’s study.

32. The applicant has therefore provided evidence of a loan from a financial institution, made to and held in the name of, an acceptable individual accordance with clause 5A508(2).

33. The applicant must also show that the regular income of any individual providing the funds to him is sufficient to accumulate to the level of funding being provided to that individual. The applicant has provided evidence via the account of Saeed Akbar with the Punjab Bank, Habib Bank and the Meezan Bank of his regular income. The applicant therefore meets cl.5A508 (1)(c).

34. The applicant has provided the Tribunal a declaration in the visa application stating that he has access to funds from an acceptable source that are sufficient to meet his costs for the remainder of his stay in Australia. The applicant therefore meets cl.5A408(1)(aa). 

35. In this case cl.5A508 (1A) does not apply to the applicant.

36. The Tribunal is therefore satisfied that the applicant meets all elements of clause 5A508 of Schedule 5A in relation to financial capacity.

    Conclusion – Schedule 5A

37. 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 573 and Assessment Level 3, the highest assessment level for the applicant. Accordingly, the applicant satisfies the requirements of cl.573.223(2)(a).

38. 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

39. 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.573.223(2)(a) of Schedule 2 to the Regulations.

    Penelope Hunter

    
    

    Member

    ATTACHMENT – Extracts from the Migration Regulations 1994

    573.223(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 higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree 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 573.223(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.