George (Migration)

[2017] AATA 1335

George (Migration) [2017] AATA 1335 (24 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Temitayo Omolade George

CASE NUMBER:  1604532

DIBP REFERENCE(S):  CLF2015/74097

MEMBER:Gabrielle Cullen

DATE:24 July 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:

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

Statement made on 24 July 2017 at 12:59pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 573.223(2)(a), cl 573.111, r 1.03, r 1.42., Schedule 5A, cl 5A101, cl 5A507, cl 5A508, cl 5A509

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 21 March 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 27 November 2015. 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 Master of Business Administration by coursework as her principal course. The visa was refused as the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student as she did not provided evidence to meet the English capacity requirements as required by cl.573.223(2)(a) of Schedule 2.

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

   ·COE indicating study in a Bachelor of Business Information Systems from 1 August 2016 to 26 July 2019 with total fees of $37,200.

   ·IELTS test dated 30 April 2016 indicating am overall band score of 6.0.

   ·Transcript from the Australia Institute of Higher Education and letter indicating the applicant has successfully completed 8 subjects towards the Bachelor of Information Systems and is enrolled in four subjects in Semester One in 2017.

   ·Evidence the applicant completed a four week English course in 2015.

   ·Letter from Counselling and Psychological Services, UNSW dated 23 March 2015 as to the distress she is experiencing as a result of the loss of her sister.

   ·Submission from the applicant’s representative indicating the applicant was enrolled in from 2 March 2015 to 3 August 2015 a Master of Engineering Science at UNSW but did not complete the course, She indicates she successfully completed a Graduate Diploma of Business from 9 November 2015 to 8 July 2016 and is currently enrolled in the Bachelor of Business Information Systems.

   ·Financial Evidence of the applicant holding monies in a Commonwealth bank account in the sum of $6,205.16 as at 2 June 2017 and $5000 in ANZ as at 2/6/ 2017.

   ·Attestation of Birth indicating the applicant is the daughter of Mrs George Eunice dated 11 December 2014,

   ·Tax receipts from her education provider indicating the applicant paid $6,200 on 10 September 2016, $1,550 on 6 March 2017, $4,650 on 6 March 2017 and $3,100 on 5 July 2017 in course fees.

   ·Submission from the applicant’s representative dated 13 July 2017.

   ·Bank account from the Union Bank of Nigeria  in the name of the applicant’s mother, Eunice Omolayo George from 1 July 2015 to 30 December 2016, indicating she held 6,774,574 NGN ($27,135A) as at 24 August 2015, 7,0being three months before the date of application and 7, 521,414.48 ($30,129A) as at 11 December 2015.

   ·Letter of support and Authority to Debit the applicant’s school costs signed by the applicant’s mother dated 4 September 2015.

   ·Evidence of transfer of funds from the applicant’s mother to the applicant from in March 2015. The evidence indicates the applicant’s mother transferred 213,000NGN to the applicant on 6 March 2016. The applicant claims that other monies were transferred in 2015 but deposited in her uncle’s account as shown by other money transfers. It is claimed the reason the money was transferred via her uncle is as a result of the applicant’s Master card expiring soon after her arrival. This is outlined in a letter from the applicant’s uncle dated 31 January 2016.

   ·Evidence the applicant completed a Graduate Diploma of Business with Holmes Institute at Folio 37 of the Tribunal file.

5. The applicant appeared before the Tribunal on 15 May 2017 to give evidence and present arguments. The requirements of cl.5A507 to cl.5A509 were discussed.

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 is enrolled in a Bachelor of Business Information Systems by coursework 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 case is not 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 (being 1, 2, 3, 4, or 5) 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 two 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 Nigeria. 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, 1 July 2014.  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 Schedule 5A.

    English language proficiency – clause 5A507

13. The evidence indicates that the applicant achieved an overall band score of 6.0 in an IELTS test taken dated 30 April 2016. It has been found that the wording, less than two years before the date of application, includes any time in the period from 2 years before the visa application until the visa application is finally determined.

14. 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 6.0.

15. The applicant therefore meets clause 5A507(a) and therefore clause 5A507

    Other requirements- Clause 5A509

16. Clause 5A509 to be met requires that the applicant give evidence that he has successfully completed secondary schooling to the year 12 level (or equivalent). The applicant has provided evidence she obtained a Graduate Diploma of Business Administration. The applicant therefore meets cl.5A509(a) and in turn meets clause 5A509.

    Financial capacity requirements-clause 5A508

17. 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’

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 being 26 July 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.

20. The applicant’s principal course, the Bachelor of Business Administration Systems has a course end date of 26 July 2019. As this is a period of 24 months the relevant period is therefore a period of 12 months.

    Course fees

21. ‘Course fees’ are defined in Clause 5A101. Evidence from the applicant’s education provider indicates that the course fees for the total period are $37,200 and that $12,400 has been paid for the first year and $3,100 towards the second year. As the fees are $12,400 per year and as the applicant has paid $3,100 towards the second years fees, the amount to be paid for the twelve months is $12,400 - $3,100, being $9,300.

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

    Travel costs

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

    Total costs

24. 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 $9,300

    Living costs  $18,610

    Travel costs  $1,000

    Total  $28,910

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

    Funds from an acceptable source

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

27. 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.

28. As there is no evidence that the applicant has completed 75% of the course, she 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.

29. The applicant has provided evidence of a money deposit held at the Union Bank of Nigeria in the name of her mother, Eunice Omolayo George from 1 July 2015 to 30 December 2016, indicating she held 6,774,574 NGN ($27,135A) as at 24 August 2015 increasing to 7, 521,414.48 ($30,129A) as at 11 December 2015.

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

31. The evidence from the applicant’s mother indicates that the funds are available for the purpose to support the applicant’s study.  The Tribunal accepts from the evidence provided that Eunice Omolayo George is the applicant’s mother. It accepts she is an acceptable individual according to 5A101.

32. The applicant has therefore provided evidence of a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application, totalling $30,129A which is more than the requried amount of $28,910. The applicant has demonstrated that she has funds from an acceptable source in the form of a money deposit in the name of an acceptable indiviudal in accordance with cl.5A508(2).

33. The Tribunal is therefore satisfied that the applicant has provided evidence of a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application that is sufficient to meet her expenses for course fees, living costs and travel costs for the first 12 months. The applicant therefore meets cl.5A508(1)(a) and cl.5A508(1)(b).

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.5A508(1)(aa). 

35. 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 her mother of her regular income. The applicant therefore meets cl.5A508 (1)(c).

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

37. 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

38. 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).

    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.

    Gabrielle Cullen

    
    

    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.