ODUNBAKU (Migration)

[2017] AATA 511

ODUNBAKU (Migration) [2017] AATA 511 (29 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Zulfah Omowunmi ODUNBAKU
Mr Taoreed Alowonle ODUNBAKU
Mr Uthman Opeyemi ODUNBAKU
Miss Basirat Oreoluwa ODUNBAKU

CASE NUMBER:  1517149

DIBP REFERENCE(S):  BCC2015/2204314

MEMBER:Gabrielle Cullen

DATE:29 March 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Student (Temporary) (Class TU) visas.

Statement made on 29 March 2017 at 9:31am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – cl 572.223 – Genuine temporary entrant – Current enrolment – Funds from an acceptable source – Acceptable individual – Funds held for 3 months before application

LEGISLATION

Migration Act 1958, s 65

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

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 8 December 2015 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 1 August 2015. 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 of Business and Advanced Diploma of Business. 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 was not satisfied that she had provided evidence of funds from an acceptable source that are sufficient to cover the course fees, living costs and travel costs for the first 12 months of the study as required by cl.572.223 of Schedule 2 to the Regulations. The delegate noted in the decision[1] that the applicant was sent a letter to provide, among other documents, evidence of financial capacity totalling $39,391.04. Initially the first named applicant (the applicant) provided documents of financial support from her father-in-law and cousin. Following the advice of the Department that such people are not acceptable individuals to provide financial support, the applicant provided additional financial capacity evidence from her brother, Mr Sunday Akinbile. However with the documents no evidence of a bank statement in the applicant’s brother’s name was provided confirming that he has enough funds to support the applicants and no evidence of relationship was provided.

   [1] The delegate decision was attached to the Application for Review

4. On 24 October 2016 the applicants were invited to attend a hearing by telephone on 17 November 2016. The letter requested the applicants provide, among other things, a current COE, as well as documents demonstrating that they have sufficient funds or access to funds to pay course fees, living, school costs and travel costs. It noted that such documents should include evidence of fees paid and if they seek to rely on a money deposit, they may need to show how long the deposit was held immediately before the date of the visa application.

5. The applicants did not appear before the Tribunal at the scheduled time. As no satisfactory reason for the non-appearance was provided the Tribunal dismissed the application under s.362B(1A)(b). On 25 November 2016 the Tribunal received a submission from the applicant’s representative requesting reinstatement. He advised there was a clash of three hearings on the day and when the Tribunal called he incorrectly advised that he did not represent the applicants. On 1 December 2016 the Tribunal reinstated the application.

6. On 22 December 2016 the applicants were invited to a further hearing by telephone on 16 February 2017.

7. The first and second named applicants appeared before the Tribunal by telephone. The applicants’ representative was also in attendance. The Tribunal noted that there is no evidence of current enrolment before the Tribunal. The Tribunal outlined the requirements of 572.223(2) and in particular stated that an issue in this matter is whether there is evidence of financial capacity as provided for in Schedule 5A:Cl.5A408 and whether she meets the enrolment provisions and the genuine temporary entrant provisions.  It referred to the decision of the Department and the reasons for their refusal.

8. The Tribunal asked the applicant whether she was currently enrolled, she said she has a COE but is waiting to start when the visa is approved.  The Tribunal raised with the applicant under s.359AA that the PRSIMS records indicate that she applied with CoEs in a Diploma of Business and an Advanced Diploma of Business and these were cancelled on 14 December 2015. It raised with her that there was no evidence of current enrolment. It raised with her that it may lead the Tribunal to find she does not meet the enrolment criteria and the genuine temporary entrant criteria under s.572.223(1) as she has not been enrolled in a course for 14 months.

9. It raised that there are three issues with regard to her matter, the enrolment issue, a GTE concern under s.572,223(1) and whether she meets the Schedule 5A criteria under s.572.223(2) with regard to financial capacity ana provided for in cl.5A408.

10. The applicant responded that she is not currently enrolled in a course and she stopped studying in December 2015. She said she did not enrol as she was on a bridging visa. The Tribunal questioned this as a person is able to study on a bridging visa. The Tribunal noted the applicant was in Australia to study and that as she has not studied questions whether she is a genuine temporary entrant

11. She said she arrived in Australia as her husband’s dependent and applied for a student visa on 1 August 2015 on the basis she wanted to study the Diploma of Business and Advanced Diploma of Business. She said the school would not let her continue after the Department refused her. It raised with her its concern that she had applied in August 2015, not studied since December 2015 and completed no courses in Australia. 

12. She said she is not using the student visa program to maintain residence. She said she went to the school who said she could not study. She said she did not contact the Department as to whether she could study.

13. The Tribunal also referred to her not providing financial capacity evidence under 5A408. It noted that it was difficult to advise of what amount was required as it is based on current enrolment and she is not enrolled. It raised with her its concern that there is no evidence before it that she meets this requirement.

14. The applicants were given until COB on 27 February 2017 to provide further evidence including that raised under s.359AA.

15. The applicant has provided the following evidence to the Tribunal.

    ·Submission of the representative dated 24 February 2017 advising that the applicant did not attend the College as the education provider, Sunshine State closed. Attached was a photo of the closed College. He submits that when the education provider closed they did not provide the applicant with a refund and the applicant did not have enough payment for another course. He submits that the applicant has now saved enough funds to be able to enrol in a Diploma of Business and Advanced Diploma of Business, running from 21 February 2017 to 4 February 2018 and 5 February 2018 to 2 February 2012, respectively.

    ·Information as to the change in company details of Sunshine State Limited.

    ·CoEs dated 21 February 2017 for the applicant to study a Diploma of Business with OZstar Academy from 21 February 2017 to 4 February 2018 and an Advanced Diploma of Business from 5 February 2018 to 2 February 2010.

    ·Submission from the applicant’s representative dated 15 February 2017 outlining why the applicant meets cl.572,223(2) based on the applicant studying the Diploma of Business and Advanced Diploma of Business with Sunshine State Institute.

    ·Letter of sponsorship from Mrs Wurraolo Arojo indicating she will sponsor the applicant and is aware of her intention to study Business Management at the Sunshine Institute.

    ·Birth certificates of Wuraola Fatima Arowalu,

    ·Birth certificate of Sulfat Omowunmi Adalemp, being the first named applicant

    ·Bank statement in the name of Ayadar Nigeria Limited indicating a sum of 2,014,708 NGN held on 1 May 2016 being three months before the date of application and 18, 223, 694 NGNas at 1 August 2015.

    ·Applicant’s IELTS record dated 9 July 2015 indicating an overall band score of 5.5.

    ·Certificate indicating the applicant achieved a Diploma in Town and Regional Planning in 2005.

    ·Letter from Education Queensland International dated 24 March 2016 indicating the school fess for the third named applicant are in the sum of $7,096 with $236 paid.

    ·Transfer from the Second named applicant to the department of Education Controlling account with the Reference Odunbaku in the sum of $6,860 dated 31 January 2017.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. In the present case, as the applicant is currently enrolled in an Advanced Diploma of Business as her 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.

18. 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.

19. 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 meet the applicable evidentiary requirements in Schedule 5A?

20. 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’ is 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.

21. In this case, the applicant holds a passport of Nigeria. The assessment level for a holder of such a passport for Subclass 572 (the subclass of 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.

22. The evidentiary requirements for this assessment level for Subclass 572 are set out in Schedule 5A and are cl.5A407, 5A408 to cl.5A409. The clause in issue is cl.5A408.

    Schedule 5A requirements - Financial capacity – 5A408

23. As discussed during the hearing, the applicant is required to meet the Schedule 5A requirements for the grant of the visa and to show evidence of funds from an acceptable source to meet the first twelve months of study.

24. To meet the Schedule 5A requirements in relation to financial capacity, the applicant must meet cl.5A408(1)(a) and (b) which require that she has funds from an acceptable source that are sufficient to meet course and living expenses for the first 12 months. School costs are relevant in this case as she has a school age dependent child. She must also have sufficient funds from an acceptable source to meet the applicants’ travel costs. 

    The ‘first 12 months’

25. 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.

26. In this case the first 12 months begins on the expected date of visa grant, which is approximately 2 April 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.

27. The applicant’s principal course, the Advance Diploma of Business has a proposed end date of 2 February 2020. This is a period of 32 months. The first 12 months in this matter is therefore 12 months.

    Course fees

28. ‘Course fees’ are defined in Clause 5A101. The total course fees for the first 12 months are $6,000 for the Diploma of Business to 4 February 2018 and an additional two months fees for the Advanced Diploma of Business in the sum of $500 per month, being a total of $1000. The COE indicmates the intial prepaid fee as $1500. The Tribunal finds the applicant’s course fees that she owes in the first 12 months is $5,500.

29. School costs for the third named applicant are $8000 for a year. The evidence indicates these have been fully paid. As the fourth named applicant is a baby there are no school coasts.

30. Total course fees are therefore $5,500.

    Living costs

31. ‘Living costs’ are $18 610 per year for a single person (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. The rate for her partner is 35% of the basic rate, which is equivalent to $6514,and for her first child, 20% of the basic rate, being $3722 and for her second child, 15% of the basic rate, being $2792.

32. The total living costs she is requried to apy for the first 12 months are $31, 638

    Travel costs

33. ‘Travel costs’ are defined in Clause 5A101. The applicant’s home country is Nigerai. The cost for one economy one way ticket from Sydney to Kenya varies but is approximately $1,000. Taking into account that there are two children at 75%, the Tribunal estimates that the total travel costs are $4500.

    Total costs

34. 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 $ 5500

    Living costs  $ 31638

    Travel costs  $ 3500

    Total  $40 638

35. The applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $40, 638.

    Funds from an acceptable source

36. ‘Funds from an acceptable source’ is defined in subclause 5A408(2).

37. The evidence indicates the applicant has only just begun her course. Therefore, 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.

38. To the Department the first named applicant provided evidence of funds from her father-in-law and cousin. However, as noted by the Department, neither a father-in-law nor a cousin meet the requirements of an ‘acceptable individual’ as outlined in cl 5A101. The Tribunal therefore finds that the evidence of funds provided by the first named applicant’s father-in-law and cousin do not meet the cl.5A408 requirements of funds from an acceptable source. This was also raised with the applicants at the Tribunal hearing.

39. The first named applicant then submitted to the Department a statement from her brother, Sunday Akinbile that he will sponsor her, a copy of the passport, his payslips and a tax certificate for 2014 and 2015. However, as noted by the Department no evidence of a bank statement in her brother’s name was provided or evidence of relationship. The Tribunal therefore funds with regard to these documents there is no evidence of funds provided. This was also raised at the Tribunal hearing.

40. To the Tribunal the applicant has provided a letter of sponsorship from Mrs Wurraolo Arojo, the applicant’s sister indicating she will sponsor the applicant. Also provided is a bank statement in the name of Ayadar Nigeria Limited indicating a sum of 2,014,708, equivalent to $8,616A ( as at 1 May 2016 being three months before the date of application and 18, 223, 694 as at 1 August 2015, equivalent to $77,940A, being the date of application.

41. However the evidence she has provided, being a money deposit, does not show sufficient funds held for at least the 3 months immediately before the date of the application. The evidence indicates that as at three months before the date of application on 1 May 2015 the funds held were in the sum of $8616A which does not meet the required sum of $41,138A. There is also no evidence as to how Ayadar Nigeria Limited relates to the applicant’s sister.

42. As the applicant has not provided evidence of funds from an acceptable source by way of 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, the Tribunal finds that the applicant does not meet cl.5A408(2),

43. The Tribunal is therefore not satisfied on the evidence before it that the applicant meets 5A408(1) as she has not provided evidence of funds from an acceptable source that are sufficient to meet her expenses for course fees, living costs and travel costs for the first 12 months.

44. The Tribunal therefore does not accept on the evidence before it that the applicant meets the requirements as outlined in cl.5A408.

    Conclusion – Schedule 5A

45. 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).

1. 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

2. The Tribunal affirms the decisions not to grant the visa applicants Student (Temporary) (Class TU) visas.

   Gabrielle Cullen

   
   

   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.