1507255 (Migration)

[2016] AATA 3284

1507255 (Migration) [2016] AATA 3284 (17 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Iyad Bou Karroum

CASE NUMBER:  1507255

DIBP REFERENCE(S):  BCC2015/1058885

MEMBER:Don Lucas

DATE:17 February 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 573 Higher Education Sector visa:

·cl.573.223(2)(a) of Schedule 2 to the Regulations; and

·cl.573.223(2)(c) of Schedule 2 to the Regulations.

Statement made on 17 February 2016 at 5:46pm

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 13 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;

   h.AQF refers the Australian Qualifications Framework.

3. The applicant applied for the visa on 2 April 2015. At the time of lodgement, Class TU contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

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 at AQF certificate IV level.

5. The visa was refused because the applicant did not provide the evidence required to demonstrate he met cl.572.223(2)(c) of Schedule 2 to the Regulations as the delegate found that the applicant had not demonstrated that he would have access to the funds required under Schedule 5A while he was the holder of the visa for which he applied.

6. The applicant appeared before the Tribunal on 8 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Layal Karroum, his aunt.

7. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. In the present case, as the applicant currently is enrolled in a Diploma of Building and Construction as his principal course, the subclass that may be granted is Subclass 573. 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 573, this requirement is contained in cl.573.223, which is extracted in the attachment to this decision.

10. The requirements of cl.573.223 differ depending upon whether or not the applicant is, and was at the time of application, an ‘eligible higher degree student’ who has a confirmation of enrolment (COE) in each course of study for which they are such a student. ‘Eligible higher degree student’ is defined in cl.573.111 to mean an applicant for a Subclass 573 visa who is enrolled in a bachelor’s degree or a masters degree by coursework or for visa applications made on or after 23 November 2014 an advanced diploma in the higher education sector, and any preliminary course, with an eligible education provider or, in some cases, an educational business partner. Eligible education providers, and educational business partners, are those specified by the Minister in an instrument.

11. On the evidence before the Tribunal, the applicant in this case has not at any relevant time been an eligible higher degree student with a corresponding COE and cl.573.223(1A) does not apply. As such, to meet cl.573.223, 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?

12. 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.

13. In this case, the applicant holds a passport of Lebanon.  The assessment level for a holder of such a passport for Subclass 573 (the subclass for the applicant’s principal course) is assessment level 3 according to the relevant instrument. In this case, the highest assessment level to which the applicant is subject is assessment level 3.

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

    English language proficiency

15. As noted by the Department, the applicant has presented evidence of completion of a Senior Secondary Certificate in Australia in the 2 year period preceding the application,

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

    Financial capacity

17. The evidence before the Tribunal is that the applicant is now enrolled in a Certificate IV in Building and Construction (Building) which commenced on 15 February 2016 and is due for completion on 12 February 2017. Total course costs are $8,000 for which $2,70 has been paid, leaving $5,430 to be paid. Living costs for the first 12 months are $18,610 as set in Schedule 5A. Travel costs are estimated at $1,200.

18. Accordingly the Tribunal calculates that the applicant is required to demonstrate that he has funds from an acceptable source in the total sum of $25,240.

19. The applicant provided evidence to the Department of financial support from Mr Wael Wadih Bou Karroum; the delegate found there was no evidence that this person was the applicant’s uncle as claimed and therefore found that he was not an acceptable individual.

20. The applicant has since provided acceptable evidence that his father is Mr Marwan Mazyad Bukarum and that his father has held a money deposit well in excess of the required amount at all relevant times, including in the 3 month period prior to the application.

21. The Tribunal therefore finds that the applicant has given evidence in accordance with Schedule 5A Item 5A408.

    Other matters

22. Based on secondary school documents and Australia Certificate of Enrolment documents provided to the Department, the Tribunal finds the applicant given evidence in accordance with Schedule 5A Item 5A409.

23. 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).

    Access to funds

24. Having had regard to the financial documentation in the name of the applicant’s father, showing regular monthly deposits which the Tribunal accepts represent salary, the Tribunal finds that the applicant will have access to those funds for the proposed period of stay, on the basis that this includes a proposed completion of a Diploma of Building and Construction (Management) commencing 6 March 2017 and due for completion 4 March 2018.

25. The Tribunal accordingly finds that while the applicant holds the visa he will have access to the funds demonstrated or declared under Sch 5A.

26. Therefore the Tribunal finds that the applicant meets cl.572.223(2)(c).

    CONCLUSIONS

27. 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

28. 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 Higher Education Sector visa:

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

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

    Don Lucas

    
    

    Member

    ATTACHMENT – Extracts from the Migration Regulations 1994

    573.223(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 higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree 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 573.223(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.