Irshad (Migration)

[2017] AATA 1059

Irshad (Migration) [2017] AATA 1059 (13 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fahad Irshad

CASE NUMBER:  1612631

DIBP REFERENCE(S):  BCC2016/1130191

MEMBER:Mary-Ann Cooper

DATE:13 June 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 13 June 2017 at 9:38am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 – Not genuine student – No evidence of financial capacity – No funds from an acceptable source

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 572.223, r 1.03, r 1.40A, r 1.42, IMMI 14/004, IMMI 14/014, Schedule 5A, cl 5A101, cl 5A104(1), cl 5A401(1)(c), cl 5A408

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 25 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 15 March 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 Diploma in Leadership and Management. The visa was refused because the applicant did not provide the evidence required to demonstrate he is a genuine student as required by cl.572.223 of Schedule 2 to the Regulations. Specifically, that he did not meet cl.572.223(2)(a) because he had not provided evidence as required by Schedule 5A

4. The applicant appeared before the Tribunal on 4 May 2017 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. A threshold issue arose because, notwithstanding the applicant’s claims that he had a current enrolment, PRISMS records indicated otherwise. The Tribunal put this information to the applicant under s.359AA, explaining why the information was relevant and the consequences of the Tribunal’s reliance on it. It told the applicant he did not have to respond straight away but could seek further time to do so. The applicant decided to respond. He claimed he had enrolled in his MBA at Holmes but family problems had caused him to be depressed and he did not attend the course. He said he enrolled in another course but he did not have the money to pay the fees. He maintained that as far as he knew he was still enrolled in the Diploma of Leadership and Management. He asked for time to follow this up and provide a confirmation of enrolment.

7. The Tribunal noted the delegate’s decision and, subject to evidence of his current enrolment, he also needed to provide evidence that he met the Schedule 5A requirements. It observed that he had been on notice since at least the delegate’s decision of the information he was required to provide, and the Tribunal had also listed it and requested it in his hearing invitation, but he had not supplied it.

8. Notwithstanding this failure, the Tribunal allowed him some further time to provide the required evidence. This was outlined at the hearing as including evidence of his English language proficiency, his relationship with his brother (the supplier of his funds), the type of funds provided (whether a loan or a money deposit) and the date and financial institution at which they were available (noting that if he was relying on a money deposit he needed to provide evidence that it was held for at least 3 months prior to his visa application), the income of the individual supplying it, and a statement from that individual that he would provide the applicant with the financial support.

9. Documents were later provided by the applicant and sought by the Tribunal from the Department and these are further discussed below.

10. In relation to his enrolment, the applicant provided a current CoE from Global Education Consultant Pty Ltd and on this basis, as the applicant is currently enrolled in a Diploma of Leadership and Management as his principal course, the subclass that may be granted is Subclass 572. The issue in the present case therefore becomes 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.

11. 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 he is 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.

12. On the evidence before the Tribunal, the applicant in this case has not at any relevant time been 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 meet the applicable evidentiary requirements in Schedule 5A?

13. 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.

14. In this case, the applicant holds a passport of Pakistan.  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.

15. The evidentiary requirements for this assessment level for Subclass 572 are set out in Part 4 of Schedule 5A and are discussed further below.

    Financial capacity requirements - clause 5A408

16. The applicant is required to give evidence of funds from an acceptable source that are sufficient to meet his 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’

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, which the Tribunal assesses to be 30 June 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. The applicant’s Advanced Diploma in Leadership and Management is proposed to end on 1 June 2018. The Department’s policy advises that, if the ending date for calculation of expenses is based on ‘the last day of the applicant’s proposed stay in Australia,’ expenses should be calculated up to the date of expiry of the visa. Relevantly to the applicant’s circumstances the policy provides that students undertaking a course that is, or courses that are together, more than 10 months duration, which do not follow the traditional academic year, should be granted a visa that ceases 2 calendar months after the expected date of course completion (as stated on the final eCoE) and that visas for courses of less than 10 months duration cease 1 calendar month after the expected date of course completion.[1] As the applicant is undertaking a course which is longer than 10 months duration and does not appear to follow a traditional academic year, with a course completion date of 1 June 2018, the Tribunal estimates the last day of the applicant’s proposed stay in Australia to be 1 August 2018. Therefore the “first 12 months” ends on 30 June 2018, which is the earlier date.

    Course fees

    [1] PAM3 GenGuide G - Student Visas – Visa application and related procedures >The student visa period at [139] (re-issue date 21/5/15).

19. ‘Course fees’ are defined in Clause 5A101. The applicant’s CoEs state that the total course fee for the Diploma of Leadership and Management is $6,000, The Tribunal considers it appropriate to deduct from the total course fees, any amounts the applicant has already paid. The applicant has not provided evidence that he has paid any fees. The Tribunal therefore finds the course fee owed by the applicant for the relevant period is $6000.00.

    Living costs

20. ‘Living costs’ are $18,610 per year for a single person with no dependent children (subclause 5A104(1) and IMMI 14/004).  This is the ‘basic rate’.

    Travel costs

21. ‘Travel costs’ are defined in Clause 5A101 as:

    travel costs,

    for an applicant, means the sum of costs for each of the applicant and any family applicant:

    (a)      if the applicant or family applicant is not in Australia when the application is made — of travelling to Australia; and

    (b)      of returning to the applicant’s home country at the end of his or her stay.

22. The applicant’s home country is Pakistan. The applicant confirmed at the hearing that the cost for one economy one way ticket from Melbourne to Pakistan varies but is approximately $800. This is consistent with the Tribunal’s inquiries.

    Total costs

23. 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 $  6,000

    Living costs  $18,610

    Travel costs  $     800

    Total  $25,410

24. The applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $25,410.00. This was the amount of funds estimated by the Tribunal at the hearing and discussed with the applicant.

    Funds from an acceptable source

25. ‘Funds from an acceptable source’ is defined in subclause 5A408(2). It relevantly includes a money deposit held by, or a loan from a financial institution made to, an ‘acceptable individual’. An ‘acceptable individual’ is defined in cl.5A101 to include, among others, the applicant and a parent of the applicant. If relying on a money deposit, the applicant is required to show that the acceptable individual held it for at least the 3 months immediately before the date of application: cl.5A408(2)(aa).

26. In this regard, the applicant relied on funding from his brother. Following the hearing the applicant provided evidence of his sibling relationship with his brother, the source of his funds. The Tribunal is satisfied on the evidence before it that his brother is an ‘acceptable individual’ as defined in cl.5A101.

27. Documents on the Department’s file demonstrated that at December 2015 ( 3 months before the visa application date) the applicant’s brother held MYR 73,066.14 in his personal bank account in Malaysia.  As at the date of decision, this amounts to $AUD 22,703.62,[2] insufficient to cover the assessed expenses. The applicant also provided the Tribunal with an unsigned affidavit purportedly from his brother in which he asserted that he would meet his brother’s costs and that he had $USD25,000 and MYR 80,000.000 to support him. In the affidavit he also claimed to have ’availed a loan of MYR 1,000,000’. No evidence of this loan was provided. A bank statement was supplied demonstrating money held in the brother’s account however it covered the period from January to March 2017 and therefore was not relevant to the required assessment. On the basis that the affidavit was not signed or witnessed, and was unaccompanied by any evidence of the identity of the person who made it, the Tribunal gives it little weight. In addition, in the absence of any objective evidence as to the loan asserted to have been sourced (cl.5A408(2)(b)), or of the additional funds held in a money deposit as required by cl.5A408(2)(aa), the Tribunal is not satisfied that the applicant has given evidence that he has funds from an acceptable source sufficient to meet his assessed expenses for the relevant period.

    [2] accessed 13 June 2017

28. Therefore, the Tribunal is not satisfied that the applicant meets the requirements of clause 5A408(1)(a) and (b) of Schedule 5A for the purposes of cl.572.223(2)(a). It follows that he does not meet cl.5A408.

29. The Tribunal notes that the applicant has also provided copies of his brother’s payslips and information concerning his part ownership of a company in Malaysia however these are relevant to the assessment of cl.5A401(1)(c) and, given the Tribunal’s findings above, such an assessment is now not required.

30. The Tribunal has also considered the alternative provisions in cl.5A408 however there is no evidence or any claim that the applicant meets the requirements of cl.5A408(1A).

31. As the requirements of Schedule 5A are cumulative, it is unnecessary for the Tribunal to consider the other clauses.

32. On the basis of the above, the applicant has not given evidence in accordance with the applicable Schedule 5A requirements, and therefore does not satisfy cl.572.223(2)(a).

    CONCLUSION

33. 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

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

    Mary-Ann Cooper

    
    

    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.