1506594 (Migration)

[2015] AATA 3555

1506594 (Migration) [2015] AATA 3555 (15 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs SEYHAN MERVE SISMAN

CASE NUMBER:  1506594

DIBP REFERENCE(S):  BCC2015/837149

MEMBER:Susan Pinto

DATE:15 October 2015

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 572 Vocational Education and Training visa:

·cl.572.223(2)(a) of Schedule 2 to the Regulations.

Statement made on 15 October 2015 at 3:32pm

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 24 April 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 15 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).

3. The delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in Certificate courses in Aged Care. The visa was refused because the applicant did not provide the evidence required to demonstrate she is a genuine student as required by cl.572.223 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 15 October 2015 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is currently enrolled in a Certificate IV in Aged Care at St George and Sutherland Community College as her principal course. As such, the visa subclass that can be granted is Subclass 572. The issue in this 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.

7. The applicant in this case is a national of Turkey and is subject to Assessment Level 2. To meet cl.572.223(2)(a) the applicant must give evidence in accordance with the requirements in Schedule 5A for the highest assessment level. The highest assessment level to which the applicant is subject is Assessment Level 2. She is required to meet the English Language proficiency requirements and the Financial Capacity requirements for the remainder of her studies in Australia. These are discussed below.

   English language proficiency – 5A410

8. To meet the English language proficiency requirements for Assessment Level 2, the applicant must give evidence that she has a level of English language proficiency that satisfies her proposed education provider. As indicated above, the applicant is enrolled in a Certificate IV in Aged Care at St George and Sutherland Community College The course commenced on 20 April 2015 and is due to end in April 2016. The applicant has, therefore, completed several months of the course. The applicant has also provided evidence of the completion of English language courses in Australia. The Tribunal is satisfied on the basis of that evidence that she has the level of English language proficiency that satisfies her education provider. The Tribunal finds that the applicant meets cl.5A410.

   Financial capacity - 5A411

9. To meet the financial capacity requirements, the applicant must give evidence that she has funds from an acceptable source that are sufficient to meet her expenses in relation to her course fees, living costs and that are sufficient to meet travel costs. ‘Acceptable source’, is not defined in Assessment Level 2. 

10. The applicant has provided bank records from the Commonwealth Bank showing that she and her husband have bank accounts with regular deposits. The applicant provided a bank account in her husband’s name to the Tribunal showing a balance of $18,906 as at 10 October 2015. Several bank accounts in the applicant’s or her husband’s name were also provided showing similar amounts dating from March 2015.

    Course fees

11. The applicant provided evidence to the Tribunal indicating that she has been paying the fees in instalments and her remaining course fees are $3,000.

    Living costs

12. The applicant’s course will end on 15 April 2016. The applicant requires living costs for herself and her husband for approximately six months. This equates to $12,561.

    Travel Costs

13. The applicant requires travel costs for a one way flight to, Istanbul, Turkey, for herself and her husband. The cost of a one way fare to Istanbul varies but according to Trip Adviser is approximately $1,200. The applicant, therefore, requires travel costs of approximately $2,400.

    Total costs

14. The applicant’s total costs equate to $17,961. The Tribunal is satisfied that the applicant has provided evidence that she and her husband have that amount in their Commonwealth Bank accounts and evidence establishing that both she and her husband generate a regular income. The applicant has also provided evidence of regular deposits into her bank account for wages. The Tribunal is satisfied that the applicant has funds from an acceptable source that are sufficient to meet her costs for the remainder of her stay in Australia, including her course fees, living costs and travel costs. The Tribunal also finds that the applicant has given a declaration stating that she has access to the funds from an acceptable source, either herself or her husband, that are sufficient to meet the above costs for the remainder of her proposed stay in Australia. The Tribunal finds, therefore, that the applicant meets the financial capacity requirements in cl.5A411.

15. The Tribunal has found that the applicant meets cl.5A410 and 5A411 and the Tribunal is also satisfied on that basis that the applicant has given the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant.

16. On the basis of the above, the Tribunal finds that the applicant meets cl.572.223(2)(a) of Schedule 2.

17. 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

18. 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.

    Susan Pinto

    
    

    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 (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.