Posso Beltran (Migration)

[2018] AATA 3246

Posso Beltran (Migration) [2018] AATA 3246 (12 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Giovanna Paola Posso Beltran
Mr Daniel Guillermo Saboya Donoso

CASE NUMBER:  1710711

DIBP REFERENCE(S):  BCC2016/1261520

MEMBER:Stephen Conwell

DATE:12 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 12 July 2018 at 11:11am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Genuine student – Financial requirements – Evidence of sufficient funds from acceptable source – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12, 1.40A, Schedule 2 cls 572.111, 572.223, Schedule 5 cls 5A101, 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 2 May 2017 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 18 March 2016. At the time of lodgement, Class TU contained a number of Sub-classes. With limited exceptions not relevant to this case, the Sub-class that can be granted to an applicant who applies as a student depends upon the type of course in which she or she is enrolled or has an offer of enrolment as his or her principal course, and the corresponding Sub-class 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 first-named applicant (the applicant) against the criteria for a Sub-class 572 visa on the basis of enrolment in a Diploma and Advanced Diploma of Leadership and Management. The visa was refused because the applicant did not provide the evidence required to demonstrate she was a genuine student as required by cl.572.223 of Schedule 2 to the Regulations. Specifically, she failed to provide evidence she met the financial requirements of schedule 5A and therefore the delegate was not satisfied she met clause 572.223 (2)(a), specifically 5A408.

4. The applicants appeared before the Tribunal on 22 March 2018 to give evidence and present arguments.

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 is currently enrolled in an Advanced Diploma of Leadership and Management as her principal course, the Sub-class that may be granted is Sub-class 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 Sub-class 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 Sub-class 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 Sub-class 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 she 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?

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 Sub-class 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.

10. In this case, the applicant holds a passport of Colombia.  The assessment level for a holder of such a passport for Sub-class 572 (the Sub-class for the applicant’s principal course) is assessment level 3.

11. The evidentiary requirements for this assessment level for Sub-class 572 are set out in Part 4 of Schedule 5A.

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

    a.the applicant’s law degree issued on 31 July 2008 from the University of Bogota Foundation;

    b.Statement of Academic Completion for Master of Social Work degree - RMIT;

    c.Master of Social Work degree - RMIT - completed December 2013;

    d.Graduate Certificate in Project Management, APIC - completed October 2015;

    e.applicant’s Student ID Card – St. Peter Institute

    f.Diploma of Leadership and Management - St. Peter Institute - completed February 2018;

    g.Confirmation of Enrolment (COE) for:

    ·a Diploma of Leadership and Management, St. Peter Institute, with course dates 20 February 2017 to 18 February 2018;

    ·an Advanced Diploma of Leadership and Management, St. Peter Institute, with course dates 2 April 2018 to 31 March 2019;

    h.documents from Housing for the Aged Action Group Inc, (HAAG):

    ·Contract of Employment, commencement date: 9 September 2017;

    ·Pay Slips for period: 20.11.17  to  3.12.17 and  4.12.17 to 13.12.17 and 14.12.17 to 27.12.17.

    The Hearing

13. The applicant told the Tribunal she had read and understood the primary decision a copy of which she submitted with her review application.

14. The Tribunal explained to the applicant that when an application was refused on the basis of having not met one of the Schedule 5A requirements of English or financial capacity, on review it was necessary for the applicant to provide evidence to satisfy both English and financial capacity requirements.

    Financial capacity requirements – clause 5A408

15. Clause 5A408 requires the applicant to give evidence of funds from an acceptable source that is sufficient to meet her course fees and living costs for the first 12 months.

    The ‘first 12 months’

16. 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.

17. In this case the first 12 months begins on the expected date of visa grant being 30 July 2018. 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 of Leadership and Management concludes on 31 March 2019. Allowing a further month to arrange departure from Australia, 30 April 2019 is the earlier date.

    Course fees

18. ‘Course fees’ are defined in Clause 5A101. The evidence contained in the applicant’s COE records that her course fees are $6,000 for her Diploma course and  $5,750 for  the Advanced Diploma course. The COEs record that the applicant has paid no monies towards these fees, however the applicant confirmed that she is paying her fees for both the Diploma and Advanced Diploma at a rate of  $625 month and that the combined course fees of $11,750 will be paid in full by September 2018. The Tribunal accepts the applicant’s evidence and on that basis, the sum of $1,875 therefore remains to be paid by September 2018.

    Living costs

19. Annual ‘Living costs’ are $18,610 per year for a single person with no dependent children. As the applicant is married, her husband’s annual living costs are assessed to be $6,514.  For the 9 month period, the applicant’s living costs are calculated to be $13,958 with her husband’s living costs being $4,885 (subclause 5A104(1)). For the 9 month period the applicants’ combined living costs will therefore be: $18,843.

    Travel costs

20. ‘Travel costs’ are defined in Clause 5A101. The applicant’s home country is Columbia. Based upon information sourced from online flight websites, the cost of a one way 'economy' ticket from Melbourne to Bogota varies but is approximately $1400 per person, therefore the cost for both applicants is $2,800.

    Total costs

21. In accordance with clause 5A508, the Tribunal finds that the applicant’s total course fees, together with both applicants’ living costs and travel costs for the first 12 months are as follows:

    Course fees $1,875

    Living costs  $18,843
    Travel costs  $ 2,800

    Total  $23,518

22. The applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $23,518.

    Funds from an acceptable source

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

24. As the applicant has not completed 75% of her principal 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.

25. The applicant submitted to the Tribunal that she no longer wishes to rely upon her father and brother-in-law as the sources of financial support; instead she submitted a Contract of Employment as evidence of her part-time employment with HAAG for a fixed term from 9 November 2017 to 30 September 2018. The applicant stated that her total salary under the contract was $48,484 and there was the possibility of the contract being extended.

26. The applicant did not submit evidence of funds in any bank account in the name of either applicant for her financial support for the purposes of the visa.  Therefore this material does not satisfy cl. 5A408(2). There is also no evidence that the applicant has funds from a money deposit held by another acceptable individual (other than herself or her husband) or has a loan from a financial institution made to, and held in the name of, an acceptable individual, or a loan from the government of Columbia or financial support as listed in cl. 5A408(2 (d).

27. At Hearing the Tribunal reminded the applicant that the letter sent to her inviting her to attend the Hearing on 22 March 2018 expressly asked her to submit documents demonstrating she had sufficient funds before she applied for the visa.

28. The Tribunal informed the applicant that to be granted a student visa she was required to provide evidence she satisfied the regulations. The Tribunal told the applicant it would consider the evidence presented and not make a decision on the matter for several weeks and would consider any evidence submitted in the interim.

29. As no further evidence has been submitted by or on behalf of the applicant, the Tribunal is therefore not satisfied that the applicant has provided evidence that she has 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.

30. The applicant therefore does not satisfy cl. 5A408 of Schedule 5A of the Regulations.

31. 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).

32. As the requirements of Schedule 5A are cumulative, it is not necessary for the Tribunal to consider the remaining provisions.

    Member of Family Unit – Secondary visa applicant

33. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria. Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

34. As the Tribunal finds that the first-named visa applicant does not satisfy the primary criteria, the secondary applicant is unable to meet the secondary criteria because he is not a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.572.223. Therefore the secondary applicant does not satisfy cl.572.322(b).

    DECISION

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

    Stephen Conwell
    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.