WORGU (Migration)
[2017] AATA 666
•5 May 2017
WORGU (Migration) [2017] AATA 666 (5 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Ndamati Dele WORGU
CASE NUMBER: 1612302
DIBP REFERENCE(S): BCC2015/3322940
MEMBER:Mary-Ann Cooper
DATE:5 May 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 573 Higher Education Sector visa:
·cl.573.223(2)(a) of Schedule 2 to the Regulations.
Statement made on 05 May 2017 at 10:12am
CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – cl 573.223 – Genuine student – English language proficiency – Successful completion of secondary schooling – Financial capacity
LEGISLATION
Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2 cl 573.223, Schedule 5A, r 1.03, r 1.42
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 on 21 July 2016 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 11 November 2015. At the time of lodgement, Class TU 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); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).
In the present case, the delegate assessed the applicant against the criteria for a Subclass 573 visa on the basis of enrolment in a Bachelor of Business. The visa was refused because the applicant did not provide the evidence required to demonstrate he was a genuine student as required by cl.573.223 of Schedule 2 to the Regulations. Specifically, he did not provide evidence that he satisfied Schedule 5A.
The applicant appeared before the Tribunal on 2 May 2017 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, as the applicant currently is enrolled in a Bachelor of Business at Stott’s Colleges (Acknowledge Education Pty Ltd) as his principal course, the subclass that may be granted is Subclass 573. 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 573, this requirement is contained in cl.573.223, which is extracted in the attachment to this decision.
The requirements of cl.573.223 differ depending upon whether or not the applicant is, and was at the time of application, an ‘eligible higher degree student’ who has a confirmation of enrolment (COE) in each course of study for which they are such a student. ‘Eligible higher degree student’ is defined in cl.573.111 to mean an applicant for a Subclass 573 visa who is enrolled in a bachelor’s degree or a master’s degree by coursework or for visa applications made on or after 23 November 2014 an advanced diploma in the higher education sector, and any preliminary course, with an eligible education provider or, in some cases, an educational business partner. Eligible education providers, and educational business partners, are those specified by the Minister in an instrument.
On the evidence before the Tribunal, the applicant in this case has not at any relevant time been an eligible higher degree student with a corresponding COE and cl.573.223(1A) does not apply. As such, to meet cl.573.223, 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?
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 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.
In this case, the applicant holds a passport of Nigeria. The assessment level for a holder of such a passport for Subclass 573 is assessment level 3: IMMI 14/014. In this case therefore, the highest assessment level to which the applicant is subject is assessment level 3.
The evidentiary requirements for this assessment level for Subclass 573 are set out in Part 5 of Schedule 5A and are discussed below.
English language proficiency – clause 5A507
The English language proficiency requirements for the applicant are determined by cl.5A507 of Schedule 5A and require, among other things, that the applicant give evidence that he or she will not undertake an ELICOS before commencing his or her course and has achieved in an IELTS test that was taken less than 2 years before the date of the application an overall band score of at least 6.0.
The applicant provided the Tribunal with a copy of his results in an IELTS test he had undertaken on 24 October 2015. Those results demonstrate an overall band score of 6.5. The applicant has already commenced his proposed course and therefore will not be undertaking an ELICOS beforehand.
On this basis, the Tribunal finds that the applicant meets cl.5A507(a) as he has given evidence that he has achieved, in an IELTS test taken less than two years before the date of the visa application, an Overall Band Score of at least 6.0.
He therefore meets the English language proficiency requirements of clause 5A507 of Schedule 5A for the purposes of cl.573.223(2)(a).
Other requirements - Clause 5A509
Clause 5A509 requires, among other alternatives, that an applicant provide evidence that he or she has successfully completed secondary schooling to the year 12 level or its equivalent: cl.5A509(a).
The Department and Tribunal files contain a copy of a document from the West African Examinations Council demonstrating that the applicant has completed his West African Senior School certificate in December 2002. The Tribunal accepts that this is evidence that the applicant has completed year 12 secondary schooling.
He therefore meets clause 5A509 of Schedule 5A for the purposes of cl.573.223(2)(a).
Financial capacity requirements - clause 5A508
The applicant is required to give evidence of funds from an acceptable source that are sufficient to meet his course fees and living costs for the first 12 months. School costs are not relevant in this case as the applicant does not have any school age dependent children.
The ‘first 12 months’
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.
In this case the first 12 months begins on the expected date of visa grant, which the Tribunal assesses to be 31 May 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. The applicant’s Bachelor of Business is proposed to end on 31 December 2017. The Department’s policy guidelines indicate that students undertaking a course that is, or courses that are together, more than 10 months duration which follow the traditional academic year (finishing in November-December) should be granted a visa that ceases 15 March of the year following course completion. On this basis the Tribunal assesses that the last day of the applicant’s proposed stay in Australia will be 15 March 2018. The earlier of the alternative dates therefore ends on 15 March 2018 (cl. 5A101(b)(ii)).
Course fees
‘Course fees’ are defined in Clause 5A101 and means the fees for each course proposed to be undertaken by the applicant in the period, that is ‘the first 12 months’. The applicant has provided a document from his educational provider stating that all his fees are paid in full. On this basis the Tribunal calculates his total course fees for the relevant period to be zero.
Living costs
‘Living costs’ are $18,610 per year for a single person with no dependent children (subclause 5A104(1) and IMMI 14/004). This is the ‘basic rate’. Given the assessment above, that the applicant’s ‘first 12 months’ ceases on 15 March 2018, the Tribunal has calculated his living costs proportionately. It finds therefore that the applicant’s living costs for the relevant period to be $13,957.50.
Travel costs
‘Travel costs’ are defined in Clause 5A101 as:
travel costs,
for an applicant, means the sum of costs for each of the applicant and any family applicant:
(a) if the applicant or family applicant is not in Australia when the application is made — of travelling to Australia; and
(b) of returning to the applicant’s home country at the end of his or her stay.
The applicant’s home country is Nigeria. The applicant confirmed the Tribunal’s inquiries that a ticket from Melbourne to Lagos would be approximately $1366.00. On this basis the Tribunal assesses the likely travel cost as $1366.00.
Total costs
In accordance with clause 5A508, 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 $ 0
Living costs for 9 months $13,957.50
Travel costs $ 1,366
Total $15,323.50
The applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $15,323.50.
Funds from an acceptable source
‘Funds from an acceptable source’ is defined in subclause 5A508(2). It relevantly includes a money deposit held by, or a loan from a financial institution made to, an acceptable individual. If relying on a money deposit, the applicant is required to show that the acceptable individual held it for at least 3 months immediately before the date of application: cl.5A508(2)(b).
The documents provided to the Department indicated that the applicant’s cousin would be providing him with financial support. As his cousin is not an ‘acceptable individual’ as defined the applicant did not meet the financial capacity requirements and the visa was refused.
Prior to the hearing the applicant provided evidence that his mother would support him however no evidence of their relationship had been provided and the financial documents supplied did not indicate her available funds (as opposed to those of her company) or that they had been held for at least 3 months prior to the date of application.
At the hearing the applicant also told the Tribunal that he was employed, running his own business. He provided evidence of two credit cards in his name, and associated statements, from the Commonwealth Bank, which demonstrated available funds of over $18,000.00.
The Tribunal is therefore satisfied that the applicant has funds by way of a line of credit, (i.e. a loan), to him from a financial institution that is sufficient to meet his assessed expenses for the ‘first 12 months’. An “acceptable individual” is defined to include an applicant. It follows that the Tribunal is also satisfied that the applicant’s evidence of his funds constitutes evidence of funds from an acceptable source and meets the financial capacity requirements of clause 5A508(1)(a) and (b) for the purposes of Schedule 5A.
The applicant has provided a declaration in his visa application that he has access to funds from an acceptable source that are sufficient to meet his costs for the remainder of his stay in Australia. The applicant therefore meets cl.5A508(1)(aa).
In addition, the applicant must also show that the regular income of any individual providing the funds to him was sufficient to accumulate the level of funding being provided to that individual: cl.5A508(1)(c). The applicant’s bank statements demonstrate regular deposits into his account from his business and the Tribunal is satisfied that this provides him with regular income sufficient to accumulate to the level of required funding.
The applicant therefore meets cl.5A508(1)(c).
In this case cl.5A508(1A) does not apply to the applicant.
The Tribunal is therefore satisfied that the applicant meets all elements of clause 5A508 of Schedule 5A in relation to financial capacity.
For the above reasons, the applicant has given evidence in accordance with the applicable Schedule 5A requirements, and therefore satisfies cl.573.223(2)(a).
CONCLUSION
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
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 573 Higher Education Sector visa:
·cl.573.223(2)(a) of Schedule 2 to the Regulations.
Mary-Ann Cooper
Member
ATTACHMENT – Extracts from the Migration Regulations 1994
573.223(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 higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree 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 573.223(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.
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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