1504806 (Migration)

[2016] AATA 3344

1504806 (Migration) [2016] AATA 3344 (23 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Queen Kampamba

CASE NUMBER:  1504806

DIBP REFERENCE(S):  BCC2015/576068

MEMBER:Adrian Ho

DATE:23 February 2016

PLACE OF DECISION:  Melbourne

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(2)(a) of Schedule 2 to the Regulations.

Statement made on 23 February 2016 at 1:20pm

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 26 March 2015 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 for the visa on 22 February 2015. 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).

3. 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.

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

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

   f.Direction 53 or the Direction refer to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. In the present case, as the applicant now proposes to study a bachelor of nursing, the subclass that may be granted is Subclass 573.

7. To meet cl.573.223(2)(a), 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.

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

8. 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.

9. In this case, the applicant holds a passport of Pakistan.  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, which is also the highest assessment level for the applicant.

10. The evidentiary requirements for this assessment level for Subclass 573 are set out in Part 5 of Schedule 5A.

    English language proficiency

11. The applicant provided an IELTS test report from March 2015 where she achieved no less than 6.5 in each of the four test components.

12. The applicant has given evidence in accordance with Schedule 5A507. 

    Financial capacity

13. The applicant has provided a letter from the Commonwealth Bank evidencing a personal loan of not less than AUD$30000 to Sylvia Musonda who, on the submitted payslips, earns a regular income around $83000 a year in full time employment in Western Australia (f.109).

14. The tribunal finds this regular income to be sufficient to accumulate the funds above and to service the loan that is in place.

15. The applicant’s says Ms Musonda is her maternal aunt.  The applicant’s birth certificate reveals that her mother’s maiden name is Musonda (f.79) and a national medical document lists her mother in the name of Florence Musonda (f.78).  That document also lists her mother’s father and mother as Joseph Musonda and Elizabeth Musonda, which parents are also listed as Sylvia Musonda’s parents on her birth certificate (f.99).

16. Therefore, the evidence suggests and the tribunal accepts that the applicant’s mother is the full sister of Sylvia Musonda, who is therefore the applicant’s maternal aunt.

17. The tribunal finds that taking into account living costs for the first 12 months, outstanding course fees apportioned for the first 12 months and fees already paid, and return travel costs, the applicant must provide evidence of having AUD 28610 in funds. 

18. The funds available under the loan exceed the amount of funds that must be shown.

19. The tribunal has accessed Ms Musonda’s movement records which reflect that she is an Australian citizen and is ordinarily resident in Australia, having made four trips of short duration out of Australia since 2011.

20. The applicant has given evidence in accordance with Schedule 5A Item 5A508.

    Other matters

21. 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 5A509.

22. On the basis of the above, the applicant has given evidence in accordance with the applicable Schedule 5A requirements and therefore satisfies cl.573.223(2)(a).

23. 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

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(2)(a) of Schedule 2 to the Regulations.

    Adrian Ho

    
    

    Member