Thapa (Migration)

[2017] AATA 1607

Thapa (Migration) [2017] AATA 1607 (31 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sanjay Thapa

CASE NUMBER:  1612616

DIBP REFERENCE(S):  BCC2016/2125359

MEMBER:Lilly Mojsin

DATE:31 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 31 August 2017 at 1:29pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 570 Independent ELICOS Sector – Genuine student – Financial capacity requirements – Funds from an acceptable source – Money deposit not held for 3 months before the application

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 5A101, cl 5A208, cl 570.223, Schedule 5A

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 5 August 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 570 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 22 June 2016.

3. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575), or whether the applicant has the support of the relevant Minister (Subclass 576).

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 570.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not satisfy cl.570.223(2) and cl.5A208 of Schedule 2.

5. The applicant appeared before the Tribunal on 13 July 20167 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF EVIDENCE

7. The applicant has provided to the Tribunal and Offer of Enrolment to study General English  at the Global English College commencing on 27 July 2017 and ending on 15 January 2018 and commencing on 22 January 2018 and ending on 23 June 2018.

8. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 570.

9. At the Tribunal hearing the applicant discussed with the applicant the financial requirements of the legislation and the Department assessment of $27 000.  It was explained that evidence was required 3 months before the date of application ie 22 March 2016.

10. The applicant provided details of monies held, in the name of the applicant’s father with the Nabil Bank being a Certificate of Account Balance dated 3 July 2017 and a Support Statement that the applicant’s father guarantees his financial support and that his son will have access to the funds. The Tribunal discussed with the applicant the requirement of the legislation.

11. The applicant was advised that he had additional time to provide a submission and any further documents on which he sought to rely. No submission or documents were received by the Tribunal.

    REASONS AND FINDINGS

12. As the applicant has an Offer of Enrolment to study General English as the principal course, the subclass that may be granted is Subclass 570.

13. The issue before the Tribunal is whether the applicant is a 'genuine applicant for entry and stay as a student' having regard to the prescribed matters. 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.

14. The applicant holds a passport of Nepal. The assessment level specified in the relevant instrument for a holder of such a passport for subclass 570 (the subclass for the applicant's principal course) is assessment level 3, which is also the highest assessment level to which the applicant is subject.

15. The delegate found that the applicant did not meet the financial capacity requirements to satisfy Schedule 5A. The highest assessment level to which the applicant is subject is assessment level 3.

16. Clause 5A208 requires the applicant to give evidence of funds from an acceptable source that are sufficient to meet his course fees, school costs and living costs for the first 12 months and that they are sufficient to meet his travel costs. Evidence must also be provided of a declaration that the applicant has access to funds from an acceptable source that are sufficient to meet these costs for the remainder of his stay in Australia.

17. Clause 5A101 relevantly provides that

    first 12 months , for an applicant, means the period that:

    (a)  begins

    (i)  ………. 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 application the first 12 months begins on the expected date of visa grant, which is approximately 1 September 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.

19. The applicant has an offer of enrolment for a course due to be completed on 22 June 2018.  The Tribunal has calculated costs for 12 months. 

20. In relation to the course fees, evidence has been provided that $4 940 is outstanding. The Tribunal has estimated the applicant's travel costs to be $1 000. The Tribunal has estimated living costs of $18 610.

21. The applicant must therefore demonstrate financial capacity in the following amounts:

Course fees	$  4 940
Living costs	$18 610
Travel costs	$  1 000
TOTAL	$25 550

1. Clause 5A208(2) requires that if the applicant has not completed 75% of the course and has not applied for the visa to complete his course and proposes to undertake any further courses, then he 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. The applicant has not as yet commenced his course. The applicant has provided evidence of a money deposit held by his father, who is an acceptable individual, in the Nabil Bank of NPR 2 7000 000=$A33 644. The deposit is dated 3 July 2017. The date of application was 22 June 2016.  The applicant does not meet cl.5A508(2).

2. As the applicant does not meet cl. 5A508(2) he cannot meet cl.570.223(2).

3. The Tribunal must affirm the decision under review.

   DECISION

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

   Lilly Mojsin
   Member