HARO DIAZ (Migration)

[2017] AATA 462

HARO DIAZ (Migration) [2017] AATA 462 (22 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ORLANDO MARCOS HARO DIAZ

CASE NUMBER:  1605478

DIBP REFERENCE(S):  BCC2016/740481

MEMBER:Penelope Hunter

DATE:22 March 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.

Statement made on 22 March 2017 at 1:13pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – cl 572.223 – Genuine temporary entrant – Funds from an acceptable source – Financial support from an aunt outside Australia – Insufficient financial capacity

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2 cl 572.223, r 1.40A, Schedule 5A

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 9 April 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 22 February 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 assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in a Certificate III in Business with course dates from 14 November 2016 to 9 June 2017, a Certificate IV in International Trade with course dates from 24 July 2017 to 12 January 2018 and a Diploma of International Business with course dates from 26 February 2018 to 10 August 2018. The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.572.223 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 9 February 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. In the present case, as the applicant currently is enrolled in a Diploma of International Business 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.

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 not an eligible VET student with a corresponding COE and cl.572.223(1A) does not apply.  As such, to meet cl.572.223, 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 have access to the funds?

9. In this case the applicant holds a passport from Peru. The assessment level for a holder of such a passport for a Subclass 572 is assessment level 2.

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 will have access, while holding the visa, to the funds demonstrated or declared in accordance with the Schedule 5A requirements relating to financial capacity.

11. The evidentiary requirements for this assessment level for Subclass 572 are set out in Schedule 5A.

12. The following relevant documents and evidence have been provided by the applicant;

    i.Evidence of the applicant is enrolled in the Certificate III in Business with course dates from 14 November 2016 to 9 June 2017, a Certificate IV in International Trade with course dates from 24 July 2017 to 12 January 2018 and a Diploma of International Business with course dates from 26 February 2018 to 10 August 2018.

    ii.Submission dated 20 April 2016.

    iii.Evidence of the applicant’s employment in Australia.

    iv.Statements from the applicants, of bank account demonstrating a balance as at 24 January 2017 in the sum of $13,512.56.

    v.Receipt dated 14 January 2017 indicating that the applicant had paid the sum of $4153 towards payment of his tuition fees.

    vi.Letter from ILSC Business College setting out the total cost of the applicant’s package course of study in the sum of $11,230.12. The

    vii.Evidence of completion of other courses by the applicant.

    viii.Statements from the applicant’s Commonwealth Bank account for the period from 26 November 2016  to 2 December 2016.

    ix.Money deposited in the name of the applicant’s aunt, Mrs Haro Paz Rosa Agustina in the sum of US $11,045.12.

    x.Contract for the sale of land between the applicant’s aunt, Mrs Haro Paz Rosa Agustina and Reynaldo Remigio Mendoza Cortijo and Zenobia Teofila Cruz Rodriguez de Mendoza dated March 2016.

    xi.Financial support statement of Mrs Haro Paz Rosa Agustina

    xii.Post hearing submission dated 14 February 2017.

13. The applicant is required to give evidence of funds from acceptable source that are sufficient to meet his course fees, living costs for the first 12 months and travel costs. School course are not relevant in this case is the applicant does not have any school each dependent children.

    The first 12 months

14. 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.

15. In this case the first 12 months begins on the expected date of visa grant, which is approximately 30 March 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.

16. The applicant’s principal course, the Diploma of International Business has a proposed end date of 10 August 2018. The earlier date is therefore 30 March 2018.

    Course fees

17. The course fees are defined in Clause 5A101for an applicant in relation to a period, as the fees for each course proposed to be undertaken by the applicant in the period, as indicated by the proposed education providers in a letter or other document. The total course fees are $11,230.12 the applicant’s package of courses over the period from 14 November 2016 to 10 August 2018. The evidence is that the applicant has paid $4,153.00 of these costs. Not all of them relate to the relevant period. Taking into consideration the part payment that has been made towards his Certificate III in Business in relation to the relevant period which is 30 March 2017 to 29 March 2018, according to the evidence before the Tribunal, the relevant course fees would be $2,893.83.[1]

    [1] Costs of Certificate III in Business for 1 week, 30 March to 7 April 2017 being $56.33 (Course fees of  $2300 less monies paid $948.00= $1352, divided by 24 weeks); and Costs of Certificate IV in International Trade course dates 24/07/17 to 12/01/18 $2500.00; and Costs of Diploma of International Business  for  5 weeks 26 February 2018 to 29 March 2017 $337.50 ($1620 for 24 weeks); TOTAL

    Living costs

18. ‘Living costs’ are $18,360.00 per year for a single person with no dependent children (subclause 5A104(1)).

    Travel costs

19. ‘Travel costs’ are defined in Clause 5A101. The applicant’s home country is Peru. The cost for one economy one way ticket from Sydney to Peru varies but is approximately $1300.

    Total costs

20. In accordance with clause 5A408, 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 $2,893.83

    Living costs $18,610.00

    Travel costs $1,000.00

    Total $22,503.83

21. The applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $22,503.83.

    Funds from an acceptable source

22. ‘Funds from an acceptable source’ is defined in subclause 5A408(2). As the evidence does not demonstrate that the applicant has completed 75% of his package of courses, 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 visa application; or a loan from a financial institution made to, and held in the name of, an acceptable individual.

23. According to Clause 5A101 an acceptable individual means one or more of the following:

    (a)the applicant;

    (b)the applicant’s spouse or de facto partner;

    (c)a parent of the applicant

    (d)   a grandparent of the applicant;

    (e)   a brother or sister of the applicant;

    (f)  an uncle or aunt of the applicant who is:

    (i)an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

    (ii)usually resident in Australia.

24. The applicant has provided evidence in his Commonwealth Bank accounts that as at 2 March 2016, he held $9,409.85. The letters from the Commonwealth Bank document that the accounts have been held since 1 June 2015, which is three months before the date of application and the Tribunal accepts the evidence of the applicant that this balance had been maintained since that date.

25. The Tribunal finds that the Commonwealth 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. The applicant is an acceptable individual according to 5A101.

26. Further evidence before the Tribunal documents that the applicant’s aunt has funds in the sum of US $11,045.12, equivalent to AUS $14,369.38.[2] However the applicant’s aunt is not an acceptable individual for the purposes of Clause 5A101.

    [2] >

    On 24 February 2017, the Tribunal wrote to the applicant and advised him that as his aunt was a resident of Peru she was not an acceptable individual for the purposes of the Regulations. The applicant was provided with details of Clause 5A101 and invited to submit to the Tribunal on or before 17 March 2017 to demonstrate his financial capacity for the purposes of the visa.

27. On 9 March 2017, the Tribunal received a submission from the applicant that he had already sent required information which demonstrated his own funds and he did not have any further information regarding that and requested that the Tribunal make a decision.

28. As at the date of the decision the Tribunal has not received any further material from the applicant.

29. The Tribunal cannot have regard to the funds available from the applicant’s aunt in assessing his financial capacity. The applicant has therefore only provided evidence of a money money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the visa application totalling $9,409.85, this is less than the required amount of $22,503.83.

30. The applicant has not demonstrated that he has funds from an acceptable source in accordance with cl.5A408(1).

    Conclusion – Schedule 5A

31. On the basis of the above findings, the Tribunal finds that the applicant has not provided evidence, that he has funds from an acceptable source 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 does not satisfy the requirements of cl.572.223(2)(a).

32. For these reasons, the Tribunal finds that criteria for the grant of a Subclass 572 visa are not met. As there is no evidence the applicant is eligible to be granted a student visa of another subclass, the decision under review must be affirmed.

    DECISION

33. The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.

    Penelope Hunter

    
    

    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.