1416094 (Migration) - [2015] AATA 3275

1416094 (Migration) [2015] AATA 3275 (13 August 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yutai Qin
CASE NUMBER:  1416094
DIBP REFERENCE(S):  BCC2014/1358947
MEMBER:Magda Wysocka
DATE:13 August 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.

Statement made on 13 August 2015 at 9:55am
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 17 September 2014 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). A copy of the decision record was provided with the application for review.
The applicant applied for the visa on 2 June 2014. 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 Diploma and Bachelor of commerce. The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.573.223 of Schedule 2 to the Regulations. Specifically, the delegate was not satisfied that the applicant had provided evidence of meeting the English language requirements as the evidence provided by the applicant did not meet any of the requirements set out in Schedule 5A to the Regulations.
The applicant appeared before the Tribunal on 27 April 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, as the applicant currently has an offer of enrolment in a Bachelor of Commerce 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 masters 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 was not at time of application an eligible higher degree student with a corresponding COE and cl.573.223(1A) does not apply. As set out in email correspondence between the department and the applicant’s representative that was provided to the tribunal, the applicant’s representative was advised that one of his educational providers at time of application was not listed as an eligible education provider and that the applicant is therefore not a eligible higher degree student. At time of application, the applicant provided confirmation of enrolment from Southern Cross University and Cambridge International College. While Southern Cross University is on the relevant list of eligible education providers, Cambridge International College is not listed as an eligible business partner: IMMI 14/007.
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 China. The assessment level for a holder of such a passport for Subclass 573 (the subclass for the applicant’s principal course) is assessment level 3: IMMI 14/003. The applicant is also proposing to undertake a diploma of commerce, which is not an ELICOS, which has an assessment level of 3 specified for the applicant’s passport: IMMI: 14/003. In this case, 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.
English language requirements
At the hearing, the tribunal noted submissions from the applicant’s representative claiming that the applicant is entitled to processing as an eligible higher degree student and advised that this submission did not appear to be correct. The tribunal outlined the various ways in which the English language requirement could be met and asked the applicant how he believed that he satisfied this requirement.
The applicant advised that he was relying on his completion of English language courses at Cambridge International College and at Deakin University, in relation to which documents were provided to the tribunal. The tribunal notes that the decision record indicates that the applicant submitted a letter from Cambridge International College to the department advising that completion of English courses at the college satisfy the requirements of an overall IELTS score of 5.5.
The applicant was advised at his hearing that his completion of these English courses did not appear to satisfy the English language requirements and he was given time to sit an IELTS test.
On 26 May 2015 the tribunal received a copy of the applicant’s IELTS test of 9 May 2015, showing an overall band score of 4.5.
On 18 June 2015 the tribunal wrote to the applicant clarifying the following:
The tribunal advises that, contrary to its understanding at hearing, it appears that you cannot meet the English language requirements based on a combination of the ELICOS course you have already undertaken and the score of an IELTS test. This is because the relevant provision of cl5A507 refers to a situation where an applicant … ‘will undertake’ an ELICOS of no more than a specified duration before commencing his or her principal course, and has achieved a specified score in an IELTS test that was taken less than 2 years before the date of the application. This requirement is intended for students with a lesser level of proficiency (as reflected in a lower IELTS test score than that required for other alternatives) and calls for evidence of a commitment to an ELICOS to be undertaken in the future, and before commencing the principal course. Thus, evidence that an ELICOS was undertaken before the visa application was made or that an ELICOS had already been completed at the time of the Tribunal’s decision (even if completed before commencing the principal course) would not satisfy the requirement (Sapkota v MIAC (2012) 258 FLR 273 and Singh v MIBP [2014] FCCA 2948).
The tribunal further notes that the Overall Band Score on the IELTS test that you have provided does not meet the Overall Band Score of at least 6.0 that is required if you will not undertake an ELICOS course before commencing your principal course.
The tribunal invited the applicant to provide any other evidence that he meets the relevant English language requirements and gave him further time to do so. The tribunal referred to the applicant’s PRISMS record indicating that he had undertaken and finished a Certificate IV in Spoken and Written English from 24 March 2014 to 27 July 2014 and specifically invited the applicant to provide any evidence that, less than two years before the date of application and as the holder of a student visa, he had successfully completed a substantial part of a course that was conducted in English and leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher.
On 23 June 2015 the tribunal received a further IELTS test from the applicant, dated 16 May 2015 with an overall band score of 5.0. Accompanying this document was a submission from his agent that the applicant is applying as an eligible higher degree student and is exempt from English language requirements, that he passed Deakin University’s English test and that his English studies are the equivalent of an overall band score of 5.5.
The tribunal has considered the submissions and evidence before it. For the reasons set out in paragraph 8 above, the tribunal finds that the applicant is not an eligible higher degree student and therefore must meet the normal English language requirements as set out in cl.5A507.
The completion of ELICOS courses alone is not sufficient to meet the English language requirements: cl. 5A507. Furthermore, as set out in the tribunal’s letter to the applicant, the applicant is unable to satisfy the English language requirement based on a combination of an ELICOS course that has already been completed and a subsequent IELTS test. This is because cl.5A507(1)(b) states that the applicant:
(i) will undertake an ELICOS of no more than 30 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
This requirement is intended for students with a lesser level of proficiency (as reflected in a lower IELTS test score than that required for other alternatives) and calls for evidence of a commitment to an ELICOS to be undertaken in the future, and before commencing the principal course.
The evidence provided by the applicant is that he already completed his ELICOS course at Deakin on 19 December 2014. Accordingly, the applicant does not meet the requirements of cl.5A507(1)(b).
The applicant has provided two IELTS test results, the highest overall band score being a 5.0. Clause 5A507(1)(a) requires an IELTS overall band score of 6.0 for an applicant who will not undertake an ELICOS course before commencing his principal course. The applicant has not met this score.
The tribunal granted the applicant further time to provide any other evidence that he meets the English language and specifically invited him to provide evidence regarding whether, less than two years before the date of application and as the holder of a student visa, the applicant had successfully completed a substantial part of a course that was conducted in English and leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher, in accordance with cl.5A507(1)(d). The tribunal notes that the current student visa application was lodged on 2 June 2014 and PRISMS records indicate that the applicant undertook and finished a Certificate IV in Spoken and Written English from 24 March 2014 to 27 July 2014.
The applicant did not provide evidence in relation to this invitation, such as a certificate of completion of this Certificate IV course or any evidence that would indicate that he had successfully completed a substantial part of this course before the date of visa application. As such, the tribunal is not satisfied on the evidence before it that the applicant satisfies cl.5A507(1)(d).
The evidence before the tribunal does not indicate that the applicant meets any of the other methods to satisfy the English language requirements.
The tribunal therefore finds on the evidence before it that the applicant does not satisfy cl.5A507. It is therefore not necessary to consider the remaining Schedule 5A requirements.
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.573.223(2)(a).
For these reasons, the Tribunal finds that criteria for the grant of a Subclass 573 visa are not met. As there is no evidence the applicant is eligible to be granted a student visa of another subclass, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.
Magda Wysocka

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.