1506050 (Migration) - [2016] AATA 3440

1506050 (Migration) [2016] AATA 3440 (1 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Thi Thuy Tien Dang
CASE NUMBER:  1506050
DIBP REFERENCE(S):  BCC2015/731056 BCC2015731056
MEMBER:Adrian Ho
DATE:01 March 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 572 Vocational Education and Training visa:
·cl.572.223(2)(a) of Schedule 2 to the Regulations.

Statement made on 01 March 2016 at 5:35pm

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 23 April 2015 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
Where used in this decision:
a.COE refers to Certificate of Enrolment;
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.ELICOS refers to English Language Intensive Courses for Overseas Students;
e.A reference such as ‘5Axxx’ refers to the corresponding item or clause of Schedule 5A to the Migration Regulations;
f.The Department or Immigration refers to the Department of Immigration and Border Protection; and
g.IELTS refers to the International English Language Testing System.
The applicant applied for the visa on 6 March 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 first-named applicant (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.
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 proposes to study in the VET sector, and the subclass that may be granted is Subclass 572.
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.
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…

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.

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Details

AGLC: 1506050 (Migration) [2016] AATA 3440
Case: [2016] AATA 3440
Decision Date: 1 March 2016

CaseChat Overview and Summary

This case involved an application for a Student (Temporary) (Class TU) visa, subclass 572, by an applicant from Vietnam. The matter was remitted for reconsideration by the Tribunal, which determined that the applicant had satisfied the evidentiary requirements for the highest assessment level for the applicant as per cl.572.223(2)(a) of Schedule 2 to the Regulations. The Tribunal examined the applicant's English language proficiency and financial capacity, finding that the applicant had provided sufficient evidence to meet the requirements. The Tribunal also found that the term 'sister' in the Regulations could be interpreted to include a half-sister, in line with the approach taken in previous cases.

The primary legal issue was whether the applicant had provided adequate 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. The Tribunal concluded that the applicant had met the evidentiary requirements for assessment level 3, which was the highest assessment level applicable to the applicant at the time of the application.

The Tribunal's decision was based on the evidence provided by the applicant, which demonstrated the necessary English language proficiency and financial capacity. The Tribunal also considered the definition of 'sister' in the Regulations, finding that it could include a half-sister, and applied this interpretation to the case. As a result, the Tribunal determined that the applicant had met the applicable criteria and remitted the application for reconsideration.

The Tribunal remitted 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.

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 proposes to study in the VET sector, and the subclass that may be granted is Subclass 572. 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. 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? 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. In this case, the applicant holds a passport of Vietnam. 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. The evidentiary requirements for this assessment level for Subclass 572 are set out in Part 4 of Schedule 5A.English language proficiency The applicant provided the tribunal with evidence of obtaining an overall score of 5.5 in an IELTS test taken less than 2 years before the visa application was made. The applicant has given evidence in accordance with Schedule 5A407. Financial capacity The applicant has provided evidence that her half-sister is her financial sponsor who has a Commonwealth Bank home loan against which she, and her husband, can redraw $88320. The terms ‘brother’ and ‘sister’ are relevantly defined in the Macquarie Dictionary as, respectively, ‘a male child of the same parents as another (full brother)’,or ‘a male child of only one of one's parents (half-brother)’; and ‘daughter of the same parents (full sister)’ or ‘daughter of only one of one's parents (half-sister)”.[1] Mercado v MIAC[2] suggests that an expansive approach to the word ‘brother’, as including a ‘half-brother’ is appropriate in the context of the Regulations. In that case, the Federal Magistrates Court agreed with the tribunal that ‘brother’ in the definition of ‘overseas near relative’ in r.1.15(2)(a) of the Regulations, included a ‘half-brother’.[3] The Court’s reasoning would be equally applicable to the use of the word ‘sister’ in the Regulations.[4] [1] The Macquarie Dictionary Online Sixth Edition © 2013 Macquarie Dictionary Publishers Pty Ltd accessed on 4 June 2014.[2] [2007] FMCA 1216 (Lloyd-Jones FM, 26 July 2007).[3] The decision in Mercado was expressly followed in Claridge v MIBP [2013] FCCA 1953 (Burchardt J, 6 December 2013) at [31]-[36] where the Court agreed that the term ‘brother’ included ‘half-brother’. The Court acknowledged that while the meaning to be ascribed to words may change from time to time, there is judicial authority of some antiquity supporting the reasoning adopted in Mercado at [35].[4] In Claridge v MIBP [2013] FCCA 1953 (Burchardt J, 6 December 2013) the Court noted that by inference the same reasoning set out in Mercado and in this decision would apply to the term ‘sister’ at [9].

Decision

Reasons for decision

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 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.Adrian HoMemberATTACHMENT – 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.Adrian HoMemberATTACHMENT – 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.