Pokhrel (Migration)
[2017] AATA 2272
•8 November 2017
Pokhrel (Migration) [2017] AATA 2272 (8 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Ambika Pokhrel
CASE NUMBER: 1612963
DIBP REFERENCE(S): CLF2012/167663
MEMBERS:Stephen Conwell (Presiding)
Penelope HunterDATE:8 November 2017
PLACE OF DECISION: Melbourne
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 570 Independent ELICOS Sector visa:
·cl.570.223(2) of Schedule 2 to the Regulations.
Statement made on 08 November 2017 at 10:21am
CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 570 Independent ELICOS Sector visa – Genuine student – Certificate of enrolment – Acceptable source of funding – Access to funds
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.40A, r 1.42, Schedule 2, cl 570.222, cl 570.223, cl 570.235, Schedule 5A, cl 5A101, 5A204, 5A205(2), 5A206, 5A207, 5A208, 5A209
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration (“the Minister” or “the Department”) on 12 June 2015 to refuse to grant the Applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The Applicant applied for the visa on 13 August 2012. 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).
On 20 September 2012, the Applicant’s application was refused on the basis she did not meet cl. 570.235 of Schedule 2 to the Regulations. The Applicant sought a review by the Migration Review Tribunal, which decided on 11 December 2013 to remit the case for reconsideration back to the Department.
In the decision of 12 June 2015, the delegate assessed the Applicant against the criteria for a Subclass 570 visa on the basis of enrolment in Certificates III and IV in ESL.
A delegate made the decision to refuse the application on the because it was found that the Applicant had not provided evidence to demonstrate that she met the financial capacity requirements of cl.570.223 of Schedule 2 to the Regulations.
On 29 June 2015 the Tribunal received an application to review the decision.
A hearing was scheduled on 25 February 2016. The Applicant did not attend. The Tribunal, as it was then constituted, affirmed the delegate’s decision not to grant the Applicant a Student (Temporary) (Class TU) visa on 26 February 2016.
.The Applicant appealed the decision to the Federal Circuit Court and the matter was remitted back to the Tribunal on 12 August 2016.
By letter of 17 October 2017 the Applicant was invited to appear before the Tribunal on 2 November 2017 and to provide any written statements and other evidence at least 7 days before the Hearing date. A submission dated 27 October 2017 prepared by the Applicant’s registered migration agent was received by the Tribunal by email.
10. The Applicant appeared before the Tribunal on 2 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
11. The Applicant was represented in relation to the review by her registered migration agent.
12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
13. In the present case, as the Applicant currently is enrolled in General English as her principal course, the subclass that may be granted is Subclass 570. 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 570, this requirement is contained in cl.570.223, which is extracted in the attachment to this decision.
To meet this criterion, the Applicant in this case must give evidence relating to English language proficiency, financial capacity and any other prescribed matter. These evidentiary requirements are set out in Schedule 5A to the Regulations and differ depending upon the subclass sought and the Applicant’s assessment level. The Minister must also be 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.
The submission of 27 October 2017 by the Applicant’s provided the following evidence in support of her application:
a.Evidence of Identity and Divorce
i.Copy of the Applicant’s Nepalese passport;
ii.Copy of the Applicant’s High School Certificate;
iii.Copy of the Applicant’s Certificate of Divorce.
b.Signed statement by Applicant addressing the ‘genuine and temporary entry’ (GTE) criterion;
c.Evidence of Enrolment
i.Certificates of Enrolment (CoE) for the above-mentioned courses (provided previously);
ii.Certificate of Enrolment (CoE) in Certificate IV in EAL.
d.Evidence of Payment of Fees – receipt issued by Brighton Institute of Technology confirming that the Applicant has a balance of $2800 remaining towards her ELICOS.
e.Evidence of Financial Support indent
i.Sponsorship letter by the Applicant’s brother, Chandrakanta Pokhrel, dated 25 October 2017 confirming his financial support of the Applicant;
ii.evidence of loan taken out by the Applicant’s brother for the amount of NPR 2,100,000.00 for the purpose of the Applicant’s studies in Australia.
iii.a print-out of on-line currency converter noting conversion of Nepalese Rupee to Australian dollar dated 25 October 2017.
f.Evidence of course progress – letter of 25 October 2017 from Brighton Institute of technology confirming the Applicant’s enrolment status and academic progress.
g.Evidence of Past Studies – Confirmation letter from Barkly International College dated 24 October 2017 confirming the Applicant’s past enrolment in Certificate III in ESL (Further Study).
Evidence of Enrolment
15. On the basis of the CoE submitted and referred to above, the Tribunal finds that the applicant meets the requirements of cl.570.222.
Does the Applicant meet the applicable evidentiary requirements in Schedule 5A?
16. The assessment level that applies to the Applicant is that which the Minister has specified at the time of the visa application, in relation to each subclass for the kind of eligible passport the Applicant holds at the time of decision: r.1.42. In this case the Applicant holds a passport of Nepal. The assessment level for a holder of such a passport for Subclass 570 is assessment level 3: IMMI 12/005.
17. The evidentiary requirements for this assessment level for Subclass 570 are set out in Part 2 of Schedule 5A and are extracted in the attachment to this decision. The issue in the present case is whether the applicant meets the criterion in cl.572.223. So far as relevant to the present matter, that criterion requires that at the time of the decision, the Minister be satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).
Schedule 5A requirements for Assessment Level 3
18. Schedule 5A to the Regulations specifies the requirements for Assessment Level 3 for Subclass 570. Relevantly, it provides:
Division 3 - Requirements for assessment level 3
Clause 5A207. English language proficiency
5A207 The applicant must give evidence that he or she has a level of English language proficiency that satisfies his or her proposed education provider.
o Clause 5A208. Financial capacity
5A208 (1) The applicant must give, in accordance with this clause:
(a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 18 months:
(i) course fees;
(ii) living costs;
(iii) school costs; and
(aa) a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 18 months;
and
(b) evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and
(c) evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.
§ (1A) If the applicant is:
(a) fully funded; or
(b) an applicant:
(i) who is not funded, wholly or partly, by:
(A) the Commonwealth Government, or the government of a State or Territory; or
(B) the government of a foreign country; or
(C) a multilateral agency; and
(ii) who proposes to undertake a course of study that is, or courses of study that are together, of a duration of less than 12 months; and
(iii) for whom, if applying in Australia, the proposed period of stay will result in the applicant’s total period of lawful stay in Australia being less than 12 months; or
(c) the subject of an arrangement by which the course fees, living costs and travel costs for the primary person’s full period, assessed for the primary person alone, will be met by:
(i) a provincial or state government in a foreign country, with the written support of the government of that country; or
(ii) an organisation specified by the Minister in a Gazette Notice for this paragraph;
the applicant must give evidence that the applicant has access to funds that are sufficient to support each member of the applicant’s family unit who is not a family applicant.
(2) In this clause:
financial support,
from an applicant’s proposed education provider, means:
(a) a scholarship that:
(i) is awarded on the basis of merit and an open selection process; and
(ii) is awarded to a student who is enrolled in a course leading to a Certificate IV qualification or a higher qualification; and
(iii) is awarded to the greater of:
(A) not more than 10% of overseas students in a course intake; and
(B) not more than 3 overseas students in a course intake; or
(b) a waiver of the applicant’s course fees carried out in the following circumstances:
(i) the applicant is part of an exchange program that involves:
(A) a formal agreement between an education provider and an education institution in a foreign country; and
(B) the reciprocal waiver of course fees as part of that agreement;
(ii) the applicant proposes to study full-time;
(iii) the applicant’s proposed studies will be credited to a course undertaken by the applicant in the applicant’s home country.
funds from an acceptable source
means one or more of the following:
(a) a money deposit that the applicant, or an individual who is providing support to the applicant, has held for at least the 3 months immediately before the date of the application;
(b) a loan from a financial institution made to, and held in the name of, the applicant, or an individual who is providing support to the applicant;
(c) a loan from the government of the applicant's home country;
(d) financial support from:
(i) the Commonwealth Government, or the government of a State or Territory; or
(ii) the government of a foreign country; or
(iii) a corporation that:
(A) conducts commercial activities outside the country in which it is based; and
(B) employs the applicant in a role in relation to which the applicant's principal course is of direct relevance; or
(iv) a multilateral agency; or
(v) the applicant’s proposed education provider; or
(vi) a provincial or state government in a foreign country, provided with the written support of the government of that country; or
(vii) an organisation specified by the Minister in an instrument in writing for this subparagraph; or
(viii) an acceptable non-profit organisation.
o Clause 5A209. Other requirements
5A209 The applicant must give evidence:
(a) of his or her previous schooling, training or other study; and
(b) that the ELICOS that he or she is to undertake will be of no more than 50 weeks duration.
English language proficiency
19. The applicant is required to give evidence that she has the level of English language proficiency that satisfies her proposed education provider.
20. The Applicant submitted evidence that she is enrolled in a General English course at Brighton Institute of Technology. In view of the fact that she has been accepted into the course and there is no evidence before the Tribunal to the contrary, the Tribunal is satisfied that the Applicant has a level of English language proficiency that satisfies her education provider and finds that the Applicant meets cl. 5A204.
Financial capacity
21. The Applicant is required to give evidence that she has funds from an acceptable source that are sufficient to meet her course fees and living costs for the first 18 months. School costs are not relevant in this case as there is no evidence before the Tribunal to indicate that the Applicant has any school age dependent children.
22. The definition of ‘first 18 months’ is defined in cl. 5A101. In this case the first 18 months begins on the expected date of visa grant, which is approximately 30 November 2017. The first 18 months ends on the earlier date of either 18 months later or the last day of the Applicant’s proposed stay in Australia. According to the Applicant’s CoE, the Applicant’s course has a completion date of 12 October 2018. To allow the Applicant time to prepare to return to her home country , the Tribunal estimates the last day of the Applicant’s proposed stay in Australia to be 30 October 2018, which is a period of approximately 10 months.
23. The Tribunal therefore finds that the ‘first 18 months’ for the purpose of assessing the Applicant’s financial capacity is a period of 10 months.
24. ‘Course fees’ are also defined in cl. 5A101. According to the evidence submitted, the Applicant’s outstanding fees are $2,800 for General English, $2,000 for English for Academic Purposes and $2000 for the Certificate IV in EAL.
25. ‘Living costs’ are defined in cl. 5A104(1) which states that ‘living costs’ are $18,610 per year (basic rate). As the Tribunal has determined the relevant period to be 10 months, the Tribunal finds the living costs to be $15,510 for the Applicant. The Tribunal finds the total living costs for the first 18 months to be $15,510.
26. In relation to ‘travel costs’ the Applicant’s home country is Nepal. The Tribunal finds that the cost to travel from Melbourne to Nepal is approximately $1,500 for an adult.
27. The Tribunal finds that the total course fees, living costs and travel costs for the Applicants for the first 18 months are as follows:
Course fees $ 6,800
Living costs for 18 months $15,510
Travel costs $ 1,500Total $23,810
28. The Applicant is therefore required to give evidence of funds from an acceptable source that is sufficient to meet expenses totalling AUD$23,810.
29. As set out in subclause 5A205(2),above, ‘funds from an acceptable source’ includes a loan from a financial institution made to, and held in the name of, the applicant, or an individual who is providing support to the applicant.
30. The Applicant has provided evidence that her brother, Mr Chandrakanta Pokhrel, is prepared to support her and has a line of credit available for this purpose. The Applicant has provided evidence that Mr Chandrakanta Pokhrel is her brother in the Relationship Certificate filed with the Tribunal. The Applicant’s brother is an acceptable individual as defined in cl. 5A101.
31. The funds are made available through a line of credit in the amount of NPR 2,100,000 with Nabil Bank of Nepal for a period of one year, expiring on 24 October 2018. The Tribunal finds this to be an acceptable source of funding for the purposes of Schedule 5A.
32. The Tribunal has found that the ‘first 18 months’ is a period of 10 months, that the Applicant requires $21,810 and she has shown funds of approximately $26,224 as at 25 October 2017. The Tribunal is therefore satisfied that the Applicant has funds from an acceptable source that are sufficient to meet her expenses for the first 18 months for course fees, living costs and travel costs. The Applicant therefore meets cl. 5A205(1)(a) and cl.5A205(1)(b).
33. The Applicant’s course has a completion date of 12 October 2018 and the Tribunal has found that the Applicant’s proposed stay is to perhaps 30 October 2018, which is within the first 18 months. On the basis of the evidence before it, the Tribunal is satisfied the Applicant meets cl.5A205(1)(c).
34. In this case cl. 5A205(1A) does not apply to the Applicant as she is not fully funded.
35. The Tribunal is therefore satisfied that the Applicant meets all elements of cl. 5A205 of Schedule 5A in relation to financial capacity.
Other requirements
36. The Applicant has provided evidence in the form of a CoE that she is enrolled to undertake an ELICOS course of about 30 weeks duration. On the basis of this evidence, the Tribunal is satisfied that the ELICOS that the Applicant is to undertake will be of no more than 40 weeks duration it finds that the Applicant satisfies cl.5A206(a).
37. As the Applicant has been accepted to be enrolled in the course, the Tribunal is satisfied that the Applicant has the educational qualifications required by her education provider and finds that she satisfies cl.5A206(b) and cl.5A206 as a whole.
38. On the basis of the above, the Applicant has given evidence in accordance with the Schedule 5A requirements and therefore satisfies cl.570.223(2)(a).
Does the Applicant have access to the funds?
39. 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.
40. The Applicant provided evidence at the hearing that her brother made arrangements for the funds to be sent to her via friends and other relatives travelling from Nepal to Australia and that some funds had been transferred directly to her education provider in payment of her fees. It was the evidence of the Applicant that her brother has been supporting her in this manner for some time.
41. As the Tribunal is satisfied the Applicant will have access to the relevant funds, cl.570.223(2)(c) is met.
42. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
DECISION
43. 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 570 Independent ELICOS Sector visa:
· cl.570.223(2) of Schedule 2 to the Regulations.
Stephen Conwell
Member
Penelope Hunter
Member
ATTACHMENT – Extracts from the Migration Regulations 1994
570.223(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 (2).
(2)An Applicant meets the requirements of this subclause if:
(a)the Applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 570 and the assessment level to which the Applicant is subject, in relation to:
(i)the Applicant’s English language proficiency for the purposes of each ELICOS that the Applicant proposes to undertake; and
(ii)the financial capacity of the Applicant to undertake each of those ELICOS without contravening any condition of the visa relating to work; and
(iii)other requirements under Schedule 5A; 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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