1507779 (Migration)

[2016] AATA 4080

1507779 (Migration) [2016] AATA 4080 (11 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Cleopatra Choto

CASE NUMBER:  1507779

DIBP REFERENCE(S):  BCC2015/1118450

MEMBER:Adrian Ho

DATE:11 July 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.

Statement made on 11 July 2016 at 3:48pm

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 18 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 15 April 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 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.

4. The applicant was invited to a hearing in this matter on 5 July 2016.  The applicant did not appear at the hearing.

5. The tribunal also invited the applicant to provide information pursuant to s.359(2) which was directly relevant to the criterion in issue.

6. The applicant did not provide any of the information requested in the tribunal’s s.359(2) letter within the prescribed period (to 8 July 2016) or to date.

7. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

8. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

10. 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.A reference such as ‘5Axxx’ refers to the referenced item or clause of Schedule 5A to the Regulations;

    e.The Department refers to the Department of Immigration and Border Protection;

    f.Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

    g.IELTS refers to the International English Language Testing System.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. In the present case, as the applicant proposes to study in the VET sector, and the subclass that may be granted is Subclass 572.

12. 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 relevant instruments.

13. On the written material before the Tribunal provided by the applicant, and by reference to relevant instruments, the applicant in this case is not and was not at the time of application 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.

14. The issue in the present case is whether the applicant has given that evidence.

    Does the applicant meet the applicable evidentiary requirements in Schedule 5A?

15. 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.

16. In this case, based on written material provided to the Department and the tribunal by the applicant, the applicant holds a passport of India.  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.

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

    Financial capacity

18. In writing the applicant advised the tribunal that her financial sponsor was her brother in law, her sister’s husband, Mr Nicholas Musinga.    The financial information she has submitted for the visa and review application related to Mr Musinga.

19. She was on notice that the Department did not consider a brother in law to be an ‘acceptable individual’ as defined in Item 5A101.  The tribunal agrees and considers that a ‘brother or sister’ as therein listed does not include a brother in law or sister in law.

20. Therefore it remains the case that the applicant has not given the evidence specified in Item 408 of Schedule 5A

21. On the basis of the above, the applicant has not given evidence in accordance with the applicable Schedule 5A requirements, and therefore does not satisfy cl.572.223(2)(a).

22. For these reasons, the Tribunal finds that criteria for the grant of a Subclass 572 visa are not met. As there is no evidence the applicant is eligible to be granted a student visa of another subclass, the decision under review must be affirmed.

    DECISION

23. The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.

    Adrian Ho

    
    

    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.