1504807 (Migration) - [2015] AATA 3637

1504807 (Migration) [2015] AATA 3637 (16 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Shivani Shivani
CASE NUMBER:  1504807
DIBP REFERENCE(S):  BCC2015/605113
MEMBER:Don Lucas
DATE:16 November 2015
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 572 Vocational Education and Training visa:
·cl.572.223(2)(a) of Schedule 2 to the Regulations.

Statement made on 16 November 2015 at 4:54pm
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 31 March 2015 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 24 February 2015. 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).
In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in a Vocational Education and Training (VET) sector course. The visa was refused because the applicant did not provide the evidence required to demonstrate that he met the financial capacity requirements in cl.572.223(2)(a) in Schedule 2 to the Regulations.
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 Hindi and English languages.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, as the applicant currently is enrolled in a Diploma of Hospitality as her 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.
The requirements of cl.572.223 differ depending upon whether or not the applicant is, and was at the time of application, an ‘eligible vocational education and training student’ (eligible VET student) who has a confirmation of enrolment (COE) in each course of study for which they are such a student. ‘Eligible VET…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1504807 (Migration)

Details

AGLC: 1504807 (Migration) [2015] AATA 3637
Case: [2015] AATA 3637
Decision Date: 16 November 2015

CaseChat Overview and Summary

The Tribunal considered an application for a Student (Temporary) (Class TU) visa from an applicant currently enrolled in a Diploma of Hospitality, potentially qualifying for a Subclass 572 visa. The central issue was whether the applicant was a genuine student under the prescribed criteria. The Tribunal found that the applicant did not qualify as an 'eligible vocational education and training student' as defined in cl.572.111. Consequently, the Tribunal applied the higher assessment level requirements set out in Schedule 5A to the Regulations. The Tribunal concluded that the applicant met the financial capacity, English language proficiency, and other relevant criteria under Schedule 5A.

The Tribunal's decision was based on the assessment that the applicant satisfied all the requirements of Schedule 5A for the highest assessment level. However, the remaining criteria under cl.572.223(1) of the Regulations, which include the Minister's satisfaction regarding the applicant's genuine intention to comply with visa conditions and the accessibility of funds, were not considered. Therefore, the Tribunal decided to remit the application to the Minister for further consideration of these criteria. The Tribunal directed that the applicant met the criteria for a Subclass 572 Vocational Education and Training visa as per cl.572.223(2)(a) of Schedule 2 to the Regulations.

The Tribunal remitted the application to the Minister for reconsideration, with the direction that the applicant meets the criteria for a Subclass 572 Vocational Education and Training visa. The Tribunal's decision highlights the importance of meeting all specified criteria for a student visa, including those under Schedule 5A and cl.572.223 of the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE In the present case, as the applicant currently is enrolled in a Diploma of Hospitality as her 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. The requirements of cl.572.223 differ depending upon whether or not the applicant is, and was at the time of application, an ‘eligible vocational education and training student’ (eligible VET student) who has a confirmation of enrolment (COE) in each course of study for which they are such a student. ‘Eligible VET student’ is defined in cl.572.111 to mean an applicant for a Subclass 572 visa who is enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector with an eligible education provider and, 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 is not an eligible VET student with a corresponding COE and cl.572.223(1A) does not apply. As such, to meet cl.572.223, 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.

Decision

Reasons for decision

Given the findings above that the applicant meets all relevant Schedule 5A requirements relating to financial capacity, English language and other requirements, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.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 572 Vocational Education and Training visa:·cl.572.223(2)(a) of Schedule 2 to the Regulations.Don LucasMemberATTACHMENT – Extracts from the Migration Regulations 1994572.223(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 vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training 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 (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.

Ratio Decidendi

Legal Principle Established

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 572 Vocational Education and Training visa:·cl.572.223(2)(a) of Schedule 2 to the Regulations.Don LucasMemberATTACHMENT – Extracts from the Migration Regulations 1994572.223(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 vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training 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 (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.