1507016 (Migration)

[2016] AATA 3594

1507016 (Migration) [2016] AATA 3594 (23 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Duy Hoang Le

CASE NUMBER:  1507016

DIBP REFERENCE(S):  BCC2015/839227

MEMBER:Adrian Ho

DATE:23 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 23 March 2016 at 4:41pm

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 7 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. 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.

3. 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).

4. 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.

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 proposes to study in the VET sector, and the subclass that may be granted is Subclass 572.

7. 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.

8. 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?

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’ 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.

10. 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.

11. The evidentiary requirements for this assessment level for Subclass 572 are set out in Part 4 of Schedule 5A.

    English language proficiency

12. On the evidence, the tribunal is satisfied the applicant has studied in English in Australia for an aggregate of at least 5 years.

13. The applicant has given evidence in accordance with Schedule 5A407.

    Financial capacity

14. The applicant has provided evidence that his sister (Le Nguyen Quynh Nhu) is his financial sponsor who has a National Australia Bank personal loan of AUD 21579 jointly with her husband. The birth certificates of the applicant and his sister confirm they have the same biological parents (f.69).  She is an acceptable individual.

15. The applicant proposes to study the VET sector course with CRICOS code 078059C to end in December 2016.

16. The tribunal finds that taking into account living costs for the period covering proposed stay and study, outstanding course fees for that period, and return travel costs, the applicant must provide evidence of having AUD 17107 in funds. 

17. The funds available on loan from an Australian bank exceed the amount of funds that must be shown. 

18. On the evidence, the applicant’s sister’s salary of AUD 1403 per fortnight reveals a regular income which is sufficient to accumulate the level of funding provided. 

19. The applicant has given evidence in accordance with Schedule 5A Item 5A408.

    Other matters

20. 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 5A409.

21. On the basis of the above, the applicant has given evidence in accordance with the applicable Schedule 5A requirements and therefore satisfies cl.572.223(2)(a).

22. 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

23. 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 Ho

    
    

    Member