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1103193 [2012] MRTA  902  (29 March 2012)

Last Updated: 10 April 2012

1103193  [2012] MRTA 902  (29 March 2012)


DECISION RECORD

APPLICANT: Mr Ramandeep Singh

MRT CASE NUMBER: 1103193

DIAC REFERENCE(S): CLF2011/22145

TRIBUNAL MEMBER: George Haddad

DATE: 29 March 2012

PLACE OF DECISION: Melbourne

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


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 and Citizenship 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 to the Department of Immigration and Citizenship for the visa on 16 February 2011. The delegate decided to refuse to grant the visa on 28 March 2011 and notified the applicant of the decision by letter dated 28 March 2011.
  3. The delegate refused the visa application on the basis that the applicant was not a genuine applicant for entry and stay as a student because he did not satisfy the requirements of cl.572.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
  4. The applicant applied to the Tribunal on 6 April 2011 for review of the delegate’s decision.
  5. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(2) of the Act. The Tribunal finds that the applicant has made a valid application for review under s.347 of the Act.

RELEVANT LAW

  1. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Regulations. For applicants who apply as a student, the subclass that can be granted in any particular case depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course, and the subclass for which that type of course was specified by the Minister under r.1.40A (see cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2) or, for Subclass 576, approval of the course by the AusAID Minister or the Defence Minister (see Part 576 of Schedule 2). Under r.1.40A, the Minister must specify by instrument the types of courses for each subclass of student visa, except Subclass 576 (AusAID or Defence Sector). Having regard to the applicant’s current enrolment, the relevant subclass in this case is Subclass 572 Vocational Education and Training Sector.
  2. The criteria for the grant of a Subclass 572 visa are set out in Part 572 of Schedule 2 to the Regulations. 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). Clause 572.223 relevantly states:

572.223 (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).

(2) An applicant meets the requirements of this subclause if:

(a) for an applicant who is not a person designated under regulation 2.07AO:

(i) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

(ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(B) any other relevant matter; and

(iii) 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; or

(b) for an applicant who is a person designated under regulation 2.07AO - the Minister is satisfied that:

(i) the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant has access to sufficient funds of the person's own or provided by a relative; and

(ii) the applicant's proficiency in English is appropriate to the proposed course of study; and

(iii) the applicant is a genuine applicant for entry and stay as a student, having regard to:

(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(B) any other relevant matter.

  1. The first of these requirements is that the applicant must provide evidence in accordance with the requirements in Schedule 5A to the Regulations. The relevant clause in Schedule 5A is dictated by the assessment level to which the applicant is subject.

Applicable Assessment Level

  1. ‘Assessment level’, for a student visa, means the level of assessment (being level 1, 2, 3, 4 or 5) specified for a kind of eligible passport for the student visa under r.1.41: r.1.03 of the Regulations. Regulation 1.41 provides that the Minister must specify by Gazette Notice an assessment level for a kind of eligible passport, in relation to each subclass of student visa, to which an applicant for a student visa (other than an applicant designated under r.2.07AO) will be subject.
  2. Regulation 1.42(1) provides that an applicant for a student visa is subject to the highest assessment level at the time of application for the relevant course of study for the subclass of student visa. ‘Highest assessment level’ and ‘relevant course’ are defined in r.1.03. ‘Highest assessment level’ is defined to mean for an applicant who proposes to undertake:

(a) a single course of study that is a registered course, the assessment level for that course of study; or

(b) 2 or more courses of study that are registered courses and that do not include an ELICOS, the assessment level for those courses which is the highest number from 1 to 5; or

(c) 2 or more courses of study that are registered courses and that include an ELICOS, the assessment level for those courses which is the highest number from 1 to 5, not including the ELICOS course.

  1. ‘Relevant course of study’ is defined to mean a type of course for the subclass of student visa that the Minister has specified in a legislative instrument made under r.1.40A.
  2. In the present case, the applicant proposed to undertake a single course of study in a course specified for Subclass 572. The Gazette Notice in force at time of application was IMMI 10/003, 16 March 2010. In relation to Subclass 572 and a passport of India, it specifies Assessment Level 4. Thus, the relevant assessment level for an applicant who at the relevant time seeks to satisfy the primary criteria for a Subclass 572 visa and holds an eligible passport of India is Assessment Level 4.

Schedule 5A requirements for Assessment Level 4

  1. Division 2 of Part 4 of Schedule 5A to the Regulations specifies the requirements for Assessment Level 4 for Subclass 572. Relevantly, it provides:

Clause 5A404. English language proficiency

5A404 The applicant must give evidence that one of the following applies:

(a) the applicant:

(i) will not undertake an ELICOS before commencing his or her principal course; and

(ii) 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 5.5;

(b) the applicant:

(i) will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course; and

(ii) 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 5.0;

(c) the applicant:

(i) is fully funded; and

(ii) has a level of English language proficiency that satisfies his or her proposed education provider; and

(iii) if the applicant is to undertake an ELICOS before commencing his or her principal course — will undertake an ELICOS of no more than 20 weeks duration;

(d) the applicant had, less than 2 years before the date of the application:

(i) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted:

(A) in Australia; and

(B) in English; or

(ii) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that:

(A) is specified by the Minister in an instrument in writing for this sub-subparagraph; and

(B) was conducted outside Australia; and

(C) was conducted in English; or

(iii) as the holder of a student visa — successfully completed a substantial part of a course (other than a foundation course) that:

(A) was conducted in English; and

(B) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

(iv) successfully completed a substantial part of a course that:

(A) is specified by the Minister in an instrument in writing for this sub-subparagraph; and

(B) was conducted outside Australia; and

(C) was conducted in English; and

(D) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

(v) successfully completed a foundation course that was conducted:

(A) in Australia; and

(B) in English; or

(vi) successfully completed a course in foundation studies that:

(A) is specified by the Minister in an instrument in writing for this sub-subparagraph; and

(B) was conducted outside Australia; and

(C) was conducted in English;

(e) the applicant achieved, less than 2 years before the date of the application, the required score in a test that is specified in a Gazette Notice under clause 5A102;

(f) the applicant has:

(i) a level of English language proficiency that satisfies the applicant’s proposed education provider; and

(ii) at least 5 years of study in English undertaken in 1 or more of the following countries:

(A) Australia;

(B) Canada;

(C) New Zealand;

(D) South Africa;

(E) the Republic of Ireland;

(F) the United Kingdom;

(G) the United States of America.

Clause 5A405. Financial capacity

5A405 (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 36 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 36 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:

acceptable individual

means one or more of the following:

(a) the applicant;

(b) the applicant’s spouse or de facto partner;

(c) the applicant’s parents;

(d) the applicant’s grandparents;

(e) the applicant's brothers and sisters;

(f) an uncle or aunt of the applicant who is:

(i) an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(ii) usually resident in Australia.

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) if the applicant:

(i) has successfully completed at least 75% of the requirements for his or her principal course; and

(ii) has applied for the visa in order to complete the course; and

(iii) does not propose to undertake any further course;

a money deposit held by an acceptable individual;

(aa) if paragraph (a) does not apply — a money deposit that an acceptable individual has held for at least the 6 months immediately before the date of the application;

(b) financial support from:

(i) the applicant’s proposed education provider; or

(ii) the Commonwealth Government, or the government of a State or Territory; or

(iii) the government of a foreign country; or

(iv) 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

(v) a multilateral agency; 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;

(c) a loan from a financial institution that is made to, and held in the name of, an acceptable individual;

(d) a loan from the government of the applicant’s home country.

The definition of “financial institution” is specified under Clause 5A101 of Schedule 5A to the Regulations as follow:

financial institution

means a body corporate that, as part of its normal activities:

(a) takes money on deposit and makes advances of money; and

(b) does so under a regulatory regime, governed by the central bank (or its equivalent) of the country in which it operates, that the Minister is satisfied provides effective prudential assurance.


Clause 5A406. Other requirements

5A406 (1) The applicant must give evidence:

(a) that he or she has successfully completed secondary schooling to the year 12 level (or its equivalent); and

(b) that:

(i) he or she is enrolled in a vocational education and training course; or

(ii) he or she is enrolled in a course that is a pre-requisite to a vocational education and training course and a vocational education and training course; or

(iii) he or she is enrolled in a course that is a pre-requisite to a vocational education and training course and has an offer of a place in a vocational education and training course.

(2) In this clause, vocational education and training course means a vocational education and training course that:

(a) leads to the award of a qualification from the Australian Qualification Framework at the diploma level; or

(b) leads to the award of a qualification from the Australian Qualification Framework at the advanced diploma level; or

(c) is a course of at least 1 year’s duration that leads to the award of a qualification from the Australian Qualification Framework at the Certificate IV level.

Other requirements

  1. In addition to the above, the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the stated intention of the applicant to comply with any conditions subject to which the visa is granted, and any other relevant matter.
  2. The Tribunal must also be satisfied that, while the applicant holds the visa, he or she will have access to the funds demonstrated or declared in accordance with the Schedule 5A requirements relating to financial capacity.

CLAIMS AND EVIDENCE

  1. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate's decision.

The visa application

  1. The applicant is an Indian national. He first arrived in Australia on 23 September 2009 as the holder of a student visa, which was valid until 15 March 2011. He applied for a further student visa on 3 February 2011.
  2. A delegate of the Minister refused the visa application by letter dated 28 March 2011 as she had invited the applicant to provide additional evidence, including evidence to show that he satisfies the financial capacity requirement of Schedule 5A for his assessment level, but he did not provide the evidence required. She found that the applicant did not satisfy cl.5A405 and therefore did not meet cl.572.223(2)(a)(i).
  3. The applicant applied for review of the delegate’s decision on 6 April 2011 and provided the Tribunal with a copy of the primary decision record.
  4. By letter dated 7 April 2011, the Tribunal acknowledged receipt of the review application and invited the applicant to provide any additional material or written arguments he wished the Tribunal to consider. The applicant did not respond to the letter.
  5. By letter dated 6 February 2012, the Tribunal informed the applicant that it has considered all of the material before it but was unable to make a favourable decision on the basis of that material alone. He was invited to appear at a hearing on 20 March 2012 to give oral evidence and present arguments relating to the issues arising in his case. He was also invited to provide evidence of current enrolment; evidence of his academic achievements and enrolment in a registered course or courses since he first arrived in Australia as the holder of a student visa; and current evidence to show that he satisfies English language proficiency, financial capacity and ‘other’ requirements of Schedule 5A for his assessment level for the purposes of cl.572.223(2)(a)(i). Copies of the relevant Regulations were attached to the letter.
  6. On 16 March 2012 the Tribunal received the following:
  7. The applicant appeared before the Tribunal on 20 March 2012 to give evidence and present arguments.
  8. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
  9. The applicant gave oral evidence and provided a brief account of his activities since he first arrived in Australia as a student visa holder. He indicated that he understood that his visa application was refused by the delegate because of the issue of funds. He stated that he had provided this evidence to his previous migration agent, who failed to submit it to the Department.
  10. The Tribunal discussed the evidence provided on 16 March 2012 and indicated that the applicant meets the English language proficiency requirement of Schedule 5A (IELTS test result referred to above).
  11. The Tribunal then discussed the financial capacity requirement of Schedule 5A for his assessment level as set out in the copy of the Regulations provided to him with the Tribunal’s letter of 6 February 2012.
  12. The applicant confirmed that he has not successfully completed at least 75% of the principal course he commenced on 20 February 2012. He also confirmed that he is not sponsored by a government in India or the Australian government.
  13. On the list of nine accounts of money deposits and the corresponding receipts, the Tribunal identified – and the applicant and his representative agreed upon – five accounts which satisfy the Schedule 5A ‘funds from an acceptable source’ requirement, specifically that they are held in a financial institution (as defined in cl.5A101) by an acceptable individual and were held for at least the six months immediately before the date of the visa application. The total of the acceptable accounts for the purposes of Schedule 5A is INR 427, 408, or equivalent to AUD 8,220.
  14. The calculation of the required funds, based on the information contained in the CoE the applicant provided, was agreed to be around $24,500. It was demonstrated therefore that the acceptable evidence of funds is insufficient to satisfy the financial capacity requirement.
  15. The applicant and his representative presented a statement relating to the applicant father’s General Provident Fund, described as similar to a superannuation fund but the account holder is able to withdraw 90% of the balance in the account. The General Provident Fund is with the Indian Government where the applicant’s father is employed. The Tribunal discussed the definition of ‘money deposit’ and ‘financial institution’ in cl.5A101 – a copy of which was also attached to the Tribunal’s letter of 6 February 2012. It asked if the general provident fund is held in a financial institution as defined, the answer was that the Indian Government is not a financial institution. The Tribunal explained why therefore it cannot accept this as evidence of funds from an acceptable source.
  16. The applicant and his representative then referred to the bank statement in the applicant father’s name dated 24 February 2012 with a current balance of INR727, 898. The Tribunal noted that the statement does not show that the money deposit has been held by the account holder for at least the six months immediately prior to the date of the visa application. The representative submitted that the Tribunal should accept evidence that the money has been held for the six months before the date of the hearing. The Tribunal did not accept this argument on the basis of the provision of cl.5A405.
  17. The applicant requested additional time to obtain evidence to show that the amount in the bank statement has been held by his father for the six months before the date of the visa application.
  18. Before considering the request, the Tribunal recalculated the evidence of available funds including the amount in the bank statement of INR727,898 and noted that even if evidence of six months savings before the date of the visa application were provided, the amount of available funds would only amount to $22,200, which would still be insufficient.
  19. The applicant discussed with his representative that he has some cash in his own bank account which he could use to pay more of the tuition fees, thereby reducing the amount of required funds. The applicant repeated his request for additional time.
  20. The Tribunal referred to its letter of 6 February 2012, in which it draws attention to the requirement of 6 months savings, notes that the issue of funds was raised with the applicant by the delegate more than a year ago, and indicates to him that if he is unable to provide the evidence and requests additional time, the Tribunal will require good reasons to grant additional time. He was invited to give good reasons for the Tribunal to consider granting his request of additional time. He simply repeated his request, attributed blame to his previous migration agent, and reduced his request for additional time to the end of the same day of the hearing. The Tribunal considered his request and the reasons he gave, but declined to grant additional time. However, the Tribunal undertook not to make its decision before the close of business of the same day.
  21. Following the hearing, on 21 March 2012 the Tribunal received two emails from the applicant’s representative stating that he has attached additional documents. The attachments to the first email were nine certificates in two languages, one of which was English. They are described as “51/2 Year Kisan Vikas Patra” They bear the name of the applicant’s father and are dated 18 May 2007, and each shows a face value of 10,000 rupees. The printed text on each certificate states that it is issued “pursuant to Government of India, Ministry of Finance Notification GSR 588(E)...” The Tribunal has taken these documents to represent government bonds. The evidence does not show that they are a money deposit as defined in cl.5A101.
  22. The attachments to the second email were: a copy of a letter from the Allahabad Bank dated 20 March 2012 and a table to which the letter refers. The table refers to money deposits in the same names as those appearing on the evidence of money deposits previously submitted to the Tribunal and discussed during the hearing. Unlike the earlier evidence from the bank, the table does not include bank account numbers. However, for each of the five items listed in the table, it shows the account name, the amount and dates including dates on which the amounts were renewed or re-invested. Notwithstanding a somewhat curious entry which indicates that an amount was “renewed on 23/8/2012”, the Tribunal took all of the amounts into consideration. Of the five listed amounts, four correspond by names, dates and amounts to evidence previously submitted to the Tribunal which were accepted and taken into the calculation of funds. The fifth listed amount also relates to a previously submitted evidence but with the additional information of an earlier date than that which was submitted previously. Accordingly the Tribunal has added this amount of INR100,000 to the previously accepted evidence of funds which meets the requirements of the Regulations.
  23. The Tribunal has re-calculated the evidence of funds from an acceptable source in accordance with the applicable Schedule 5A requirement for the applicant’s assessment level, taking into account the additional INR100,000. The total evidence of funds is INR 527,408, or equivalent to $10,143.

FINDINGS AND REASONS

  1. The applicant has applied for a Student (Temporary) (Class TU) visa. On the basis of the evidence before it, the Tribunal finds that the course in which the applicant is enrolled as the principal course is a diploma level, which was specified for Subclass 572 by the Minister in the relevant instrument under r.1.40A of the Regulations. Accordingly, the relevant subclass for this review is Subclass 572. The Tribunal finds on the evidence before it, that the applicant is not a person designated under r.2.07AO of the Regulations, and that at the relevant time held an eligible passport of India.
  2. At the time of application, the applicant was enrolled in the same type of course, and no other course. According to IMMI 10/003, 16 March 2010, the Gazette notice in force at the time of application, the applicant is subject to consideration under Assessment Level 4.
  3. In the present case, the delegate found that the applicant did not have the necessary financial capacity as specified in cl.5A405.

The Schedule 5A requirements

  1. As noted in the above discussion of the evidence, the issue which led the delegate to refuse the application was that the applicant did not give evidence to show that he satisfies the financial capacity requirement of Schedule 5A for his assessment level.
  2. The Tribunal drew attention to what would be required based on information before the Tribunal and invited the applicant to provide evidence in a letter several weeks prior to the hearing. The applicant appointed a different migration agent on 9 February 2012 to that he had appointed at the time of the review application and visa application.
  3. The evidence the applicant provided to the Tribunal which satisfies the financial capacity requirements of Schedule 5A for his assessment level, does not show that he has the funds required for the course fees, living costs and travel costs calculated on the basis of information contained in the CoEs that he submitted. A number of the documents relating to funds the applicant submitted do not meet the various requirements of cl.5A405. The applicant does not satisfy the financial capacity requirement of Schedule 5A for his assessment level.
  4. On the basis of the above, the Tribunal finds that the applicant has not given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and Assessment Level 4 to which he is subject, in relation to the necessary financial capacity. Accordingly, the applicant does not satisfy the requirements of cl.572.223(2)(a)(i).

CONCLUSIONS

  1. For the reasons given above, the Tribunal is not satisfied that the applicant meets an essential requirement of cl.572.223 of Schedule 2 to the Regulations. As explained earlier in these reasons, the subclass of Student visa that can be granted to an applicant is determined by the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course. The relevant subclass in this case is Subclass 572. As the Tribunal has found the applicant does not meet cl.572.223, it follows that the applicant cannot be granted a visa of that subclass. As no evidence has been provided on which the Tribunal could be satisfied that the applicant meets the criteria for any of the other Student (Temporary)(Class TU) visa subclasses, the decision under review must be affirmed.

DECISION

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

George Haddad Date: 29 March 2012
Member

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