1419121 (Migration)

[2015] AATA 3581

1419121 (Migration) [2015] AATA 3581 (27 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms ENESSA MAY JOSEPH
Mr JOSEPH LAZAR
Miss ETHEL EYRIS JOSEPH

CASE NUMBER:  1419121

DIBP REFERENCE(S):  BCC2014/2615358

MEMBER:Adrian Ho

DATE:27 October 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 572 Vocational Education and Training visa:

·cl.572.223(2)(a) of Schedule 2 to the Regulations.

Statement made on 27 October 2015 at 12:27pm

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 7 November 2014 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. Where used in this decision:

   a.The applicant refers to the first-named applicant;

   b.COE refers to Certificate of Enrolment;

   c.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   d.VET refers to Vocational Education and Training;

   e.ELICOS refers to English Language Intensive Courses for Overseas Students;

   f.A reference such as ‘5Axxx’ refers to the corresponding item or clause of Schedule 5A to the Migration Regulations;

   g.The Department or Immigration refers to the Department of Immigration and Border Protection; and

   h.IELTS refers to the International English Language Testing System.

3. The applicants applied for the visas on 6 October 2014. 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).

4. In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in a VET sector course. The visa was refused because the applicant did not provide evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant, as required by cl.572.223(2)(a) of Schedule 2 to the Regulations.

5. The applicants appeared before the Tribunal on 21 October 2015 to give evidence and present arguments.

6. The applicants were represented in relation to the review by their registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In the present case, as the applicant proposes to study multiple VET sector courses (the COEs for which have been provided), the subclass that may be granted is Subclass 572.

9. The issue in the present case is whether the applicant has provided evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant, as required by cl.572.223(2)(a) of Schedule 2 to the Regulations.

10. To meet this criterion, the applicant in this case 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.

    Does the applicant meet the applicable evidentiary requirements in Schedule 5A?

11. 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’ is 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.

12. In this case, the applicant holds a passport of India.  The assessment level specified in the relevant instrument for a holder of such a passport for Subclass 572 (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.

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

    English language proficiency

14. The applicant has provided to the tribunal an IELTS test report showing an Overall Band Score of 6.5. 

15. The applicant has given evidence in accordance with Schedule 5A407.

    Financial capacity

16. The applicant has provided Australia bank statements to the tribunal for accounts in the name of one or the other of the adult applicants.  Both applicants are acceptable individuals and the Australia bank accounts are acceptable sources.

17. The various amounts where the term deposit commences before three months before the visa application date and extend to beyond the visa application date are (in AUD) 12000, 16000, and 12000, for a total of AUD 40000.

18. The tribunal finds that taking into account living costs for each applicant and outstanding course fees for the first 12 months, and return travel costs, the applicant must provide evidence of having AUD 37846 in funds. 

19. The funds available on deposit exceed the amount of funds that must be shown.

20. On the evidence, the payslips of the applicant reveal a salary income which is sufficient to accumulate the level of funding being shown.

21. The applicant has given evidence in accordance with Schedule 5A Item 5A408.

    Other matters

22. Based on secondary school documents and Australia Certificate of Enrolment documents provided, the tribunal finds the applicant given evidence in accordance with Schedule 5A Item 5A409.

23. On the basis of the above, the applicant has given evidence in accordance with the applicable Schedule 5A requirements and therefore satisfies cl.572.223(2)(a).

24. 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

25. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 572 Vocational Education and Training visa:

    ·cl.572.223(2)(a) of Schedule 2 to the Regulations.

    Adrian Ho

    
    

    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 (2).

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

    (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.