1420514 (Migration)

[2016] AATA 3468

1420514 (Migration) [2016] AATA 3468 (9 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Bilal Khan

CASE NUMBER:  1420514

DIBP REFERENCE(S):  bcc2014/2437621

MEMBER:R. C. Titterton

DATE:9 March 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa: cl.573.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 09 March 2016 at 3:47pm

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 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 for the visa on 25 September 2014. The delegate decided to refuse to grant the visa on 25 November 2014. 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 Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted 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); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 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).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.573.223(2) of Schedule 2 to the Regulations because he was not satisfied that the applicant satisfied the English language proficiency requirements of clause 5A507 under Schedule 5A of the Act.

4. The applicant appeared before the Tribunal on 16 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English Proficiency

7. The primary issue in the present case was whether the applicant could satisfy the English proficiency requirements of clause 5A507. These are set out in attachment A.

8. At the commencement of the hearing Tribunal enquired whether the applicant had additional evidence over and above what had been presented to the delegate. His representative relied on a bundle materials provided to the Tribunal on 12 November 2015. There are approximately 50 pages of materials, including relevantly, in relation to the English proficiency aspect of the application, a copy of the applicant’s IELTS result for 29 January 2015, and confirmations of enrolment for the applicant to the following courses conducted by Holmes Colleges Sydney Pty Ltd:

   ·    a General English Course in the period to November 2015 to 29 January 2016;

   ·    a Graduate Diploma of Business in the period 14 March 2016 to 8 July 2016

   ·    a Master of Professional Accounting also for the period 14 March 2016 to 8 July 2016.

9. The applicant’s representative noted that the IELTS result did not satisfy Assessment Level 3, which required a score of 6.0. Unfortunately, the applicant had only scored 5.5, that was why he was undertaking the General English course in which was enrolled at the time of the hearing.

10. Given the applicant had successfully completed a Diploma of Business in May 2012, and the Graduate Diploma of Business in July 2014, and the documentation before the Tribunal appeared to suggest that he was a hard-working and sincere student, the Tribunal considered he should be allowed the opportunity to complete this course, which he was due to complete on 29 January 2016. In the Tribunal’s judgment it appeared highly likely that he would complete the course successfully. Tribunal therefore determined to hear the evidence, including in relation to the genuine temporary entry criterion, and but not publish its decision until after 29 January 2016.

11. As it transpired, the applicant did successfully complete the course. The Tribunal had before it evidence in the form of a Final Certificate of Attendance for the applicant dated 4 February 2016 and a copy of a Certificate of English Language Proficiency which had been awarded to the applicant for successfully completing an ELICOS course in the period 9 November 2015 to 5 February 2016, having attained the level of upper intermediate.

12. Accordingly, the Tribunal is satisfied that the applicant is satisfied the English language proficiency requirements of 5A507.

13. Nevertheless, as with all applicants, the applicant must satisfy the genuine temporary entry criterion.

    Genuine temporary entrant criterion

14. The secondary issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223.

15. Clause 573.223(1)(a) relevantly states:

    (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)    …

16. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

17. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

18. As noted above the applicant’s PRISMS record discloses that he completed a Diploma of Business in 2012 and a Graduate Diploma of Business in 2014. In other words, he has been in Australia for a comparatively short period of time. While his PRISMS record is not problem free, as it records a number of cancellations of courses, these matters are explained in the applicant’s Statement for Study Plan, which is referred to below.

19. As noted, the evidence before the Tribunal was that the applicant was enrolled in a Graduate Diploma of Business and a Master of Professional Accounting in the period 14 March 2016 to 8 July 2016. He said that when he concluded these courses he wished to return to Pakistan to work. His family lives there and own a number of businesses. He also wishes to establish his own business. The applicant told the Tribunal that he was 31 years old and, having completed high school in Pakistan, and then undertook graduate studies in accounting. He came to Australia to undertake further studies. He says that the quality of education in Australia is much higher than in Pakistan. He also noted that education in other countries had cross-cultural benefits to the student.

20. The Tribunal also had before it the balance of the materials in the applicant’s bundle filed on 12 November 2015. These documents include but are not limited to academic transcripts, certificates in respect of his Diploma and Advanced Diploma in business, bank statements and relevantly a Statement of Purpose and a Statement for Study Plan prepared by the applicant. The first document sets out at some length the reasons why the applicant wished to study in Australia, his capacity for undertaking his courses, the benefits available to him from those courses, and why his chosen courses will be of benefit to him and his family when he returns to Pakistan. He states he is a highly motivated student, and plans to return to Pakistan to work as an accounting professional.

21. The Tribunal considered the applicant to be a sincere and credible witness, and had no reason to doubt his evidence. The Tribunal has no reason to doubt he will return to Pakistan upon the conclusion of his courses and sees no reason why he would remain in Australia for a longer period.

22. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does meet cl.573.223(1)(a).

23. As the Tribunal has found the applicant meets the requirement of cl.573.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

24. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

    ·cl.573.223(1)(a) of Schedule 2 to the Regulations.

    R. C. Titterton
    Member

    
    

    ATTACHMENT A

    5A407   English language proficiency

    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.