1506925 (Migration)

[2016] AATA 3085

1506925 (Migration) [2016] AATA 3085 (20 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Juan Carlo Gacelos Bulaon

CASE NUMBER:  1506925

DIBP REFERENCE(S):  CLF2015/14534

MEMBER:Shahyar Roushan

DATE:20 January 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 572 Vocational Education and Training visa:

·cl.572.223 of Schedule 2 to the Regulations.

Statement made on 20 January 2016 at 9:41am

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 5 May 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 10 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. 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 Diploma of Aged Care. The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.572.223 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 13 November 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. In the present case, as the applicant currently is enrolled in a Diploma of Aged Care, which is due to commence on 25 January 2016 and end in July 2017, as his 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.

7. 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.

8. 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?

9. 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.

10. In this case, the applicant holds a passport of the Philippines. The assessment level for a holder of such a passport for Subclass 572 (the subclass for the applicant’s principal course) is assessment level 3: IMMI 14/014.  In this case, the highest assessment level to which the applicant is subject is assessment level 3.

11. The evidentiary requirements for this assessment level for Subclass 572 are set out in Part 4 of Schedule 5A: cl.5A407 (English language proficiency); cl.5A408 (financial capacity) and cl.5A409 (other requirements). 

12. In relation to cl.5A407, English language proficiency, in support of his application, the applicant submitted evidence that in 2014 he successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted in Australia and in English. The Tribunal is satisfied that the applicant meets the requirements of cl.5A407(d)(i).

13. For the purpose of cl.5A408, the relevant period is the first 12 months, which begins on the day that the student visa is expected to be granted to the applicant and ends on the earlier of the day 12 months after the beginning of the period or the last day of the applicant’s proposed stay in Australia. The applicant’s principal course is due to be completed on 30 April 2017. In the present case, the relevant period is calculated from 15 February 2016, the date of likely visa grant, to 15 February 2017, 12 months after the grant of the visa. Therefore, the total period is 12 months.

14. According to the applicant’s updated CoE, the applicant’s total tuition fees for the Diploma of Aged Care are $16,500. The applicant has not made any payments towards his Diploma’s tuition fees. His course fees are, therefore, $16,500.

15. ‘Living costs’ are $18,610 per year for a single person with no dependent children. As the Tribunal has determined the relevant period to be 12 months, the Tribunal finds the applicant’s living costs will be $18,610. The Tribunal estimates the cost of a one-way plane ticket to the applicant’s home country to be $700. The Tribunal estimates the total cost to be $35,810 from likely visa grant to authorised stay in connection with the applicant’s current study plans.  

16. The applicant has submitted evidence in the form of bank statements in the name of Mr Ramon Bulaon showing that as at 10 December 2014 an account ‘maintained by him and held in the name of Mhon Trading and Radiator Repair Shop at Philippine National Bank had a balance of 1,600,414 Pesos (PHP), which converts to $48,854.20 AUD. The evidence submitted by the applicant indicates that as at November 2015 these funds continued to be available in the same account.

17. On the basis of the evidence provided, the Tribunal accepts Mr Ramon Bulaon is the applicant's' father. The Tribunal accepts that the applicant’s father is an acceptable individual providing support to the applicant, as evidenced by his financial support statement, dated 4 July 2015. The Tribunal is satisfied that the applicant has therefore demonstrated that he has funds from an acceptable source in accordance with the relevant regulations.

18. The Tribunal, therefore, is satisfied that the applicant has funds from an acceptable source, namely a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application. The Tribunal finds that the applicant has provided evidence of funds of at least $35,810. The Tribunal finds that the applicant has funds from an acceptable source that are sufficient to meet his expenses for course fees, living costs and travel costs for the first 12 months (cl.5A408(1)). On the basis of the above, the Tribunal is satisfied that the applicant meets all the elements of clause 5A408 of Schedule 5A in relation to financial capacity.     

19. The evidence submitted also demonstrates that the applicant has successfully completed secondary schooling to the year 11 level. The Tribunal is further satisfied that the applicant is enrolled in a vocational education and training course. The applicant, therefore, satisfies the requirements at cl.5A409. 

20. 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

21. 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) of Schedule 2 to the Regulations.

    Shahyar Roushan

    
    

    Senior 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.