Yang (Migration)

[2017] AATA 1629

Yang (Migration) [2017] AATA 1629 (25 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yuhao Yang

CASE NUMBER:  1614913

DIBP REFERENCE(S):  BCC2016/1096770

MEMBER:Penelope Hunter

DATE:25 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 25 August 2017 at 11:12am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Genuine student – Financial capacity requirements – No funds from acceptable source for first 12 months – Funds not held for 3 months before application

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 572.223, Schedule 5A, cl 5A508, r 1.03, r 1.40A, r 1.42

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 13 September 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 March 2016. 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 Diploma of Laboratory Technology. The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.572.223 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 12 July 2017 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 currently is currently enrolled in a Diploma of Remedial Massage 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.

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 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.

8. On the evidence before the Tribunal, the applicant in this case has not at any relevant time been 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?

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 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.

10. In this case, the applicant holds a passport of China.  The assessment level for a holder of such a passport for Subclass 572 (the subclass for the applicant’s principal course) is assessment level 3: IMMI 04/014.

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

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

    i.Confirmation of Enrolment (CoE) and Letter of enrolment, Diploma of Remedial Massage, Harvest Education Technical College, with course dates from 10 July 2017 to 8 July 2018

    ii.ANZ Bank statements from 17 February 2017 to 6 July 2017.

    iii.Supporting statement of applicant.

    iv.Certificate of Completion, Mixed English and Academic Program Griffith English Language Institute, 18 February 2013 to 7 June 2013.

    v.Academic Transcript, Diploma of Health Science 2013/2014.

    vi.Certificate of Graduation, IELTS Preparation, course dates 17 November 2014 to 12 December 2014.

    vii.Certificate III in Aged Care, TAFE Queensland, awarded June 2015.

    viii.TAFE Queensland record of results, Certificate III in Aged Care and Diploma of Nursing.

    ix.TAFE Queensland, record of results, Diploma of Laboratory Technology, June 2016 to February 2017.

    x.IELTS test result, overall band score 5.5 dated 4 January 2015.

    xi.High School Student transcript, date of graduation July 2010.

    xii.Income certificate of Ms Wang Zhonglan dated 23 June 2017.

    xiii.Income certificate of Mr Yang Zhenli.

    English Language Proficiency – Clause 5A407

13. The applicant has submitted an IELTS test dated 14 January 2015, which records that she achieved and overall band score of 5.5. This is within 2 years of the date of application for the visa. The Tribunal therefore accepts that the applicant satisfies clause 5A407.

    Financial capacity requirements – clause 5A408

14. 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’

15. 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.

16. In this case the first 12 months begins on the expected date of visa grant being 8 October 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.

17. The applicant’s Diploma of Remedial Massage concludes on 8 July 2018. Therefore 8 July 2018 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 $9,000 for her Diploma course. The CoE records that the applicant has paid $3,000 towards these fees and the applicant confirmed this at the hearing. The balance of $6,000 remains to be paid within the relevant first 12 months.

    Living costs

19. ‘Living costs’ are $18,610 per year for a single person with no dependent children (subclause 5A104(1)). The applicant’s course will run for 9 months and her last day of proposed stay in Australia around 9 July 2018. For the period her living costs are assessed as $13,957.50.

    Travel costs

20. ‘Travel costs’ are defined in Clause 5A101. The applicant’s home country is China. The cost for one economy one way ticket from Sydney to China varies but is approximately $1000.00.

    Total costs

21. 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 $6,000.00

    Living costs  $13,957.50

    Travel costs  $1000.00

    Total  $20,957.50

22. The applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $20,957.50

    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 principle 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 had funds in her ANZ Bank account and that these funds have been provided by her parents for her financial support for the purposes of the visa. The applicant and her parents are acceptable individuals for the purposes of the Regulation.

26. The ANZ Bank statements provided prior to the hearing recorded that as at 5 July 2017, the applicant had a balance of $25,644.03 in her account.

27. While the funds in the applicant’s bank account as at the Tribunal hearing date are in excess of the sufficient funds required for the purposes of cl. 5A508 of Schedule 5A, the evidence before the Tribunal does not demonstrate that these funds have been held for 3 months prior to the date of the visa application. Therefore this material does not satisfy cl. 5A508(2).

28. The Tribunal discussed this evidentiary deficiency with the applicant at the hearing on 12 July 2017, it was also the reason for the visa refusal as set out in the delegate’s decision which was submitted to the Tribunal by the applicant. The Tribunal also drew to the attention of the applicant the letter sent to her with the hearing invitation on 14 June 2017 which had asked her to submit documents demonstrating she had sufficient funds before she applied for the visa. The Tribunal also agreed to defer making a determination until after 27 July 2017, to allow the applicant to submit further documents.

29. On 26 July 2017 the applicant provided further evidence to the Tribunal including additional statements from her ANZ account from 19 February 2016, a certificate of relationship confirming her relationship to her parents and a letter of explanation.

30. In her letter of explanation the applicant admitted that she did not pay adequate attention to the requirement to demonstrate funds in a money deposit 3 months prior to the visa application as she was largely focussed on her academic work and claimed to be unaware of the procedure. The applicant admitted negligence and pleaded her case, and relied upon evidence of transactions in her account on 24 March 2016 and 21 April 2016, after which the balance of her account accumulated to the sum of $40,938.38.

31. The Tribunal accepts that after the visa application the applicant was able to demonstrate by 21 April 2016, that she had a balance of $40,938.38 in her account. The Tribunal also notes from the statements provided to the Tribunal, the majority of these funds were no longer in her account by February 2017. However, the applicant has not provided any evidence of funds held by her parents for the relevant period prior to the visa application. The evidence she has provided of a monetary deposit in her ANZ account dates only from 19 February 2016, a period one month prior to the visa application and at this time the balance brought forward was $1,570.00.This amount is less than the sufficient funds required to be demonstrated by the applicant as set out in paragraph 22 above.

32. 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.

33. The applicant therefore does not satisfy cl. 5A508 of Schedule 5A of the Regulations.

34. 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).

    DECISION

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

    Penelope Hunter

    
    

    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.