1507920 (Migration)

[2016] AATA 3953

1507920 (Migration) [2016] AATA 3953 (27 May 2016)

DECISION RECORD

DIVISION:Migration and Refugee Division

APPLICANT:  Mr Jatinder Singh Binner

CASE NUMBER:  1507920

DIBP REFERENCE(S):  BCC2015/1222253

MEMBER:Alexis Wallace

DATE:27 May 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 27 May 2016 at 9:26am

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 3 June 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 27 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 570 visa on the basis of the course he was enrolled in at the time. The visa was refused because the applicant did not provide the evidence required to demonstrate he was a genuine student as required by cl.570.223 of Schedule 2 to the Regulations. In particular, the applicant did not satisfy the English language requirement.  The applicant had submitted IELTS test results dated 9 May 2015 showing an Overall Band score of 4.0, which was less than the score required to satisfy the English language requirement as it then applied to him.

4. The applicant appeared before the Tribunal on 20 January 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. At the time of the Tribunal hearing, the applicant was enrolled in a Certificate III in Spoken and Written English.  On that basis, the relevant subclass was a subclass 570.  However, the applicant finished that course on 22 April 2016.  The Tribunal observed that there was no longer evidence of current enrolment before it and, rather than proceeding to make a decision to affirm the application for review on that basis, the Tribunal invited the applicant in writing to submit evidence of current enrolment together with updated evidence that he satisfies the Schedule 5A requirements for the relevant visa subclass.  The applicant responded to that invitation in writing on 20 May 2016.  He stated that he had successfully completed his Certificate III in Spoken and Written English and that he wished to continue studying in Australia so he had enrolled in Diploma courses.  He provided the Tribunal with Confirmation of Enrolment documents for a Certificate IV in Business course and a Diploma of Business course.  He did not provide any additional evidence pertaining to the Schedule 5A requirements.

7. In the present case, the Tribunal finds that the applicant is currently enrolled in a Diploma of Business as his principal course and, as such, 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.

8. 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.

9. 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?

10. 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.

11. In this case, the applicant holds a passport of India.  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: IMMI14/014.  The applicant is also proposing to undertake a Certificate IV in Business, which is not an ELICOS, which has an assessment level of 3specified for the applicant’s passport.  In this case, the highest assessment level to which the applicant is subject is assessment level 3.

12. The evidentiary requirements for this assessment level for subclass 572 are set out in Part 4 of Schedule 5A and are extracted in the attachment to this decision.

    English language requirement

13. As stated above, the applicant was refused a student visa because he did not satisfy the English language requirements.  For the reasons that follow, the Tribunal affirms that decision on the basis of a finding that the applicant does not now meet the English language requirement in Schedule 5A for subclass 572 assessment level 3. 

14. In considering whether the applicant satisfies cl.5A407, the Tribunal finds that, based on the evidence submitted by the applicant, he will not undertake an ELICOS before commencing his principal course.  On that basis, he does not satisfy cl.5A407(b). 

15. There is no evidence before the Tribunal that the applicant is fully funded; that he has successfully completed a Senior Secondary Certificate of Education less than 2 years before the date of the application; or that he achieved a score on a test specified by the Minister under cl.5A102.  On that basis, the Tribunal finds that the applicant does not satisfy cl.5A407(c), cl.5A407(d) or cl.5A407(e).

16. That leaves for consideration cl.5A407(a).  The Tribunal has considered IELTS test results dated 24 October 2015 that were submitted by the applicant and show an Overall Band score of 5.0.  The Tribunal finds that this Overall Band Score is lower than the score required to satisfy cl.5A407(a).  There are no other IELTS test results before the Tribunal that demonstrate the applicant has achieved the required Overall Band Score of 5.5.  The Tribunal finds that cl.5A407(a) is not satisfied at the time of its decision. 

17. There is no evidence before the Tribunal that the applicant meets cl.5A407 in Schedule 2 to the Regulations at the time of this decision.

18. 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).

19. 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

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

    Alexis Wallace

    
    

    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.

    Division 3 - Requirements for assessment level 3

    Clause 5A407    English language proficiency
    [5A407]    The applicant must give evidence that one of the following applies:

    (a)    the applicant:

    (i)    will not undertake an ELICOS before commencing his or her principal course; and

    (ii)    achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5;

    (b)    the applicant:

    (i)    will undertake an ELICOS of no more than 30 weeks duration before commencing his or her principal course; and

    (ii)    achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 4.5;

    (c)    the applicant:

    (i)    is fully funded; and

    (ii)    has a level of English language proficiency that satisfies his or her proposed education provider; and

    (iii)    if the applicant is to undertake an ELICOS before commencing his or her principal course — will undertake an ELICOS of no more than 30 weeks duration;

    (d)    the applicant had, less than 2 years before the date of the application:

    (i)    successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted:

    (A)    in Australia; and

    (B)    in English; or

    (ii)    successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that:

    (A)    is specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (B)    was conducted outside Australia; and

    (C)    was conducted in English; or

    (iii)    as the holder of a student visa — successfully completed a substantial part of a course (other than a foundation course) that:

    (A)    was conducted in English; and

    (B)    was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

    (iv)    successfully completed a substantial part of a course that:

    (A)    is specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (B)    was conducted outside Australia; and

    (C)    was conducted in English; and

    (D)    was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

    (v)    successfully completed a foundation course that was conducted:

    (A)    in Australia; and

    (B)    in English; or

    (vi)    successfully completed a course in foundation studies that:

    (A)    is specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (B)    was conducted outside Australia; and

    (C)    was conducted in English;

    (e)    the applicant achieved, less than 2 years before the date of the application, the required score in a test that is specified in a legislative instrument made by the Minister under clause 5A102;

    (f)    the applicant has:

    (i)    a level of English language proficiency that satisfies the applicant’s proposed education provider; and

    (ii)    at least 5 years of study in English undertaken in 1 or more of the following countries:

    (A)    Australia;

    (B)    Canada;

    (C)    New Zealand;

    (D)    South Africa;

    (E)    the Republic of Ireland;

    (F)    the United Kingdom;

    (G)    the United States of America.

    Clause 5A408    Financial capacity
    [5A408] (1)    The applicant must give, in accordance with this clause:

    (a)    evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 12 months:

    (i)    course fees;

    (ii)    living costs;

    (iii)    school costs; and

    (aa)    a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 12 months; and

    (b)      evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and

    (c)    evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.

    [5A408] (1A)    If the applicant is:

    (a)    fully funded; or

    (b)    an applicant:

    (i)    who is not funded, wholly or partly, by:

    (A)    the Commonwealth Government, or the government of a State or Territory; or

    (B)    the government of a foreign country; or

    (C)    a multilateral agency; and

    (ii)    who proposes to undertake a course of study that is, or courses of study that are together, of a duration of less than 12 months; and

    (iii)    for whom, if applying in Australia, the proposed period of stay will result in the applicant’s total period of lawful stay in Australia being less than 12 months; or

    (c)    the subject of an arrangement by which the course fees, living costs and travel costs for the primary person’s full period, assessed for the primary person alone, will be met by:

    (i)    a provincial or state government in a foreign country, with the written support of the government of that country; or

    (ii)    an organisation specified in a legislative instrument made by the Minister for this paragraph;

    the applicant must give evidence that the applicant has access to funds that are sufficient to support each member of the applicant’s family unit who is not a family applicant.

    [5A408] (2)    In this clause:

    financial support, from an applicant’s proposed education provider, means:

    (a)    a scholarship that:

    (i)    is awarded on the basis of merit and an open selection process; and

    (ii)    is awarded to a student who is enrolled in a course leading to a Certificate IV qualification or a higher qualification; and

    (iii)    is awarded to the greater of:

    (A)    not more than 10% of overseas students in a course intake; and

    (B)    not more than 3 overseas students in a course intake; or

    (b)    a waiver of the applicant’s course fees carried out in the following circumstances:

    (i)    the applicant is part of an exchange program that involves:

    (A)    a formal agreement between an education provider and an education institution in a foreign country; and

    (B)    the reciprocal waiver of course fees as part of that agreement;

    (ii)    the applicant proposes to study full-time;

    (ii)    the applicant’s proposed studies will be credited to a course undertaken by the applicant in the applicant’s home country.

    funds from an acceptable source means one or more of the following:

    (a)    if the applicant:

    (i)    has successfully completed at least 75% of the requirements for his or her principal course; and

    (ii)    has applied for the visa in order to complete the course; and

    (iii)    does not propose to undertake any further course;

    a money deposit held by an acceptable individual;

    (aa)    if paragraph (a) does not apply — a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application;

    (b)    a loan from a financial institution made to, and held in the name of, an acceptable individual;

    (c)    a loan from the government of the applicant's home country;

    (d)    financial support from:

    (i)    the applicant's proposed education provider; or

    (ii)    the Commonwealth Government, or the government of a State or Territory; or

    (iii)    the government of a foreign country; or

    (iv)    a corporation that:

    (A)    conducts commercial activities outside the country in which it is based; and

    (B)    employs the applicant in a role in relation to which the applicant's principal course is of direct relevance; or

    (v)    a multilateral agency; or

    (vi)    a provincial or state government in a foreign country, provided with the written support of the government of that country; or

    (vii)    an organisation specified by the Minister in an instrument in writing for this subparagraph; or

    (viii)    an acceptable non-profit organisation.

    Clause 5A409    Other requirements
    [5A409]    The applicant must give evidence:

    (a)    that he or she has successfully completed secondary schooling to the year 11 level (or its equivalent); and

    (b)    that:

    (i)    he or she is enrolled in a vocational education and training course; or

    (ii)      he or she is enrolled in a course that is a pre-requisite to a vocational education and training course and a vocational education and training course; or

    (iii)    he or she is enrolled in a course that is a pre-requisite to a vocational education and training course and has an offer of a place in a vocational education and training course.