Makurumure (Migration)

[2018] AATA 5427

Makurumure (Migration) [2018] AATA 5427 (30 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Charles Makurumure

CASE NUMBER:  1617053

DIBP REFERENCE(S):  BCC2016/2066939

MEMBER:Meredith Jackson

DATE:30 October 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 30 October 2018 at 9:07am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 572 (Student) visa – genuine applicant for entry and stay as a student – no evidence to show sufficient fund – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.40A, 1.42, Schedule 2, cls 572.111, 572.223, Schedule 5A, cls 5A104, 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 28 September 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 16 June 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. 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 22 August 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

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 Leadership and Management as his principal course, the relevant subclass 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 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.

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’ 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 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.

1. In this case, the applicant holds a passport of Zimbabwe. 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: IMMI14/014. In this case, the highest assessment level to which the applicant is subject is assessment level 3.

2. The evidentiary requirements for this assessment level for Subclass 572 are set out in Part 4 of Schedule 5A.

3. In support of his claim that the applicant meets the Schedule 5A financial capacity requirements, he submitted prior to the hearing evidence including:

   a.Personal citizenship and academic records;

   b.Submissions regarding his personal, enrolment and financial circumstances, including a calculation of funds available to him and other matters;

   c.A statement naming his wife and son as residents of Zimbabwe;

   d.Evidence of current enrolment in a Diploma of Automotive Management with course fees totalling $7,200;

   e.Evidence from his current education provider North Melbourne College that he has paid a total of $6,000 of the relevant course fees;

   f.An account statement in his name from the Commonwealth Bank of Australia $26,781.02 in credit;

   g.Overseas Student Health Cover certificate to 22 November 2019;

   h.The delegate’s decision record.

Does the applicant meet the financial capacity requirements?

1. The delegate required the applicant to provide evidence that he had access to funds sufficient to meet expenses totalling $38,166 to over course fees, living costs and travel costs for the first 12 months of his study. The delegate’s decision did not break this amount down by item cost.

2. The applicant in appealing the delegate’s decision submitted to the Tribunal that he instead requires $22,890 to meet the financial capacity requirements of the Regulations: $20,290 in living expenses; $1200 in tuition fees (the outstanding unpaid balance); and $1600 for an airfare.

3. The Tribunal accepts the applicant’s submission that he has access to sufficient funds to meet specified financial capacity requirements for an individual, however notes that on his evidence, the applicant has a wife and son in Zimbabwe and Schedule 5A requires these family members to be taken into account. Living costs as defined in cl.5A104(1) at item 4 requires the applicant give evidence that he has access to funds meeting the basic rate and, if the applicant has a spouse, 35% of the basic rate, and if the applicant has dependent children, 20% of the basic rate for the first dependent child, regardless of whether or not the spouse or de facto partner or children are also family applicants.  Clause 5A408(1)(a) requires the applicant give evidence of funds from an acceptable source sufficient to meet course fees, living costs and school costs for the first 12 months. The meaning of living costs and school costs are set out in cl.5A104. As the applicant is self-funded item 4 of cl.5A104 applies.

4. The Tribunal therefore calculates the amount required for the applicant to meet the financial requirements of the Regulations for his assessment level, at the time of the visa application, is $39,645. This comprises outstanding tuition fees of $1200, travel fees of $1600 (based on the applicant’s own estimate), specified living expenses of $18,610 for the applicant, $6,513 for the applicant’s spouse and $3,722 for the applicant’s dependant child (IMMI:14/004) and in addition, specified school costs of $8,000 for the dependant child.

5. As detailed earlier in these reasons, the applicant has access to $26,781.02 in his Commonwealth Bank account. The applicant has not provided the Tribunal with evidence he has access to the remaining funds required by the Regulations.

6. 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).

7. 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

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

Meredith Jackson

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.