1419829 (Migration)

[2015] AATA 3546

1419829 (Migration) [2015] AATA 3546 (19 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr MUHAMMAD ANWAAR HUSSAIN
Mrs IQRA KAINAT

CASE NUMBER:  1419829

DIBP REFERENCE(S):  BCC2014/2117603

MEMBER:Antonio Dronjic

DATE:19 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 19 October 2015 at 11:17am

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 19 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.COE refers to Certificate of Enrolment in a course of study;

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

   c.VET refers to Vocational Education and Training;

   d.A reference such as ‘5Axxx’ refers to the referenced item or clause of Schedule 5A to the Regulations;

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

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

3. The applicants applied for the visas on 27 August 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 first named applicant (the applicant) against the criteria for a Subclass 572 visa on the basis of enrolment in Diploma of Automotive 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.

5. The applicant lodged the review application with this Tribunal on 4 December 2014 and submitted a copy of the primary decision record.

6. On 15 September 2015, the Tribunal invited the applicant to attend a hearing on 24 August 2015. With its hearing invitation letter, the applicant was requested to provide the following relevant documents:

   ·A copy current Certificate of Enrolment (COE) as required for the grant of a student visa.

   ·Document/s that show that the applicant is currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.

   ·Documents that show the applicant’s past studies in Australia;

   ·Documents that demonstrate the applicant has sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period.

7. On 9 October 2015, the applicant submitted:

   • Current COE for Diploma of Management indicating the course commencement day of 1 July 2015 and completion day of 25 November 2015;
   • Documentary evidence of the applicant’s past studies in Australia;
   • Evidence of funds stating that he completed more than 75% of study;
   • Letter from college for fee clearance;
   • Year 12 certificate;
   • Evidence of English proficiency IELTS;
   • Marriage certificate; and
   • Birth certificate for his son.

8. The first named applicants appeared before the Tribunal on 15 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi (Indian/Pakistani) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. In the present case, as the applicant is currently enrolled in Diploma of Management as his 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.

11. 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. 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?

12. 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.

13. In this case, the applicant holds a passport of Pakistan.  The assessment level for a holder of such a passport for Subclass 572 (the subclass for the applicant’s principal course) is assessment level three.

14. The evidentiary requirements for this assessment level for Subclass 572 are set out in Part 4 of Schedule 5A and are extracted in the attachment to this decision.

15. The applicant is 30 years of age Pakistani national. He is married and has one child born in March 2015. He first arrived in Australia in January 2011as a holder of a Student visa subclass 572. Since arriving in Australia he had completed the following courses:

    ·Certificate III in Business from 11 April 2011 to 9 September 2011;

    ·Diploma in Business from 26 September 2011 to 23 March 2012;

    ·Certificate III in Light Vehicle Technology from 11 November 2013 to 12 December 2014;

    ·Certificate IV in Automotive Mechanical Overhauling from 9 January 2015 to 8 August 2015

16. He is currently undertaking a Diploma of Management course and has presented evidence from the educational provider that he had completed more than 75% of this course. He stated that he has no intention undertake further studies in Australia and is applying for student visa in order to complete his current course. He expects to complete the course on or before 25 November 2015. He stated his intention to return to Pakistan as soon as he finishes his current studies.

17. He provided a bank statement held in his brother’s name at UBL United Bank in Pakistan evidencing PR727, 032 which is equivalent to approximately AUD$9,500. He also presented evidence of making a full payment for the course fees.

18. At the hearing, I discussed the financial requirements of Schedule 5A. The costs are calculated as follows:

    Living cost for the applicant for 2 months   $3,100

    Living cost for the applicant’s wife for 2 months  $1,085

    Living cost for the applicant’s son for 2 months  $620.00

    Travel cost  $3000

    Total   $7,805

19. The applicant agreed with this calculation and stated that the balance held in his brother’s name at UBL United Bank in Pakistan is PR727, 032 which is equivalent to approximately AUD$9,500.

    English language proficiency – clause 5A407

20. The evidence indicates the applicant completed IELTS test on 28 June 2014 and achieved an overall test score of 6. Accordingly he meets Clause 5A407(a).

    Financial capacity requirements - clause 5A408

21. The documents provided to the Tribunal indicate that the funds held on the applicant’s brothers’ bank account are for the purpose of supporting the applicant’s study, living and travel expenses.  The Tribunal accepts that the applicant’s brother is an individual who is providing support to the applicant.

    The ‘first 12 months’

22. 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.

23. In this case the first 12 months begins on the expected date of visa grant, which is approximately 1 November 2015. 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 principal course, the Diploma of Management has a proposed end date of 25 November 2015. The visa is usually granted for one month after the course end date. This is a period of 2 months.

24. In accordance with clause 5A408, the Tribunal finds that the applicant is required to give evidence of funds sufficient to meet expenses totalling $7,805.

25. The applicant provided evidence of bank deposit held in his brother’s name at UBL United Bank in Pakistan is PR727, 032 which is equivalent to approximately AUD$9,500.

    Funds from an acceptable source

26. ‘Funds from an acceptable source’ is defined in subclause 5A408(2). In this regard the Tribunal accepts the evidence that his brother is providing financial support for the applicant and his family. The Tribunal accepts the applicant’s brother is an acceptable individual.

27. The applicant has presented evidence of successfully completing at least 75% of the requirements for his principal course, stated that he had applied for the visa in order to complete the current course and declared that he does not propose to undertake any further course/s in Australia. In such case, a money deposit held by an acceptable individual is funds from an acceptable source as per Clause 5A408(2).

    Other requirements - Clause 5A409

28. Clause 5A409 requires that he provide evidence that he has successfully completed secondary schooling to the year 11 equivalent and is enrolled in a vocational education and training course or enrolled in a prerequisite to a vocational education and training course. As the applicant has provided evidence of successfully completing Senior Secondary Schooling to year 12, the Tribunal finds he meets clause 5A409.

29. 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).

30. 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

31. 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.

    Antonio Dronjic

    
    

    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.

    Clause 5A407      English language proficiency

    [5A407]      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 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 4.5;

    (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 30 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 legislative instrument made by the Minister 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 5A408      Financial capacity

    [5A408] (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 12 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 12 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.

    [5A408] (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 JD_legend_current_mrPop06841foreign country, with the written support of the government of that country; or
    (ii)      an organisation specified in a legislative instrument made by the Minister for this paragraph;

    [(ii) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(5) - LEGEND note]
    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.

    [5A408] (2)      In this clause:

    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;
    (ii)      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) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]

    (aa)      if paragraph (a) does not apply — a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application;

    [(b) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]

    (b)      a loan from a financial institution made to, and held in the name of, an acceptable individual;
    (c)      a loan from the government of the applicant's home country;

    (d)      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.

    …