1507921 (Migration)

1507921 (Migration) [2015] AATA 3824 (4 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Thi Dieu Xuan Luu
CASE NUMBER:  1507921
DIBP REFERENCE(S):  BCC2015/752399
MEMBER:Alison Mercer
DATE:4 December 2015
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 04 December 2015 at 12:50pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 June 2015 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
Where used in this decision:
·     COE refers to Certificate of Enrolment in a course of study;
·     PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;
·     VET refers to Vocational Education and Training;
·     A reference such as ‘5Axxx’ refers to the referenced item or clause of Schedule 5A to the Regulations;
·     The Department refers to the Department of Immigration and Border Protection;
·     Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and
·     IELTS refers to the International English Language Testing System.
The applicant applied for the visa on 9 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).
In the present case, the delegate assessed the applicant against the criteria for a subclass 572 visa on the basis of enrolment in a Certificate IV in Commercial Cookery. The visa was refused because the applicant did not provide the evidence required to demonstrate she was a genuine student as required by cl.572.223 of Schedule 2 to the Regulations. In particular, the delegate found that the applicant had not provided evidence that she met the English proficiency requirements in Schedule 5A to the Regulations applicable to her assessment level (3). The delegate found that she therefore did not meet cl.572.223(2)(a) and therefore could not meet cl.572.223 as a whole.
The Tribunal received a review application from the applicant on 10 June 2015. It was accompanied by a copy of the delegate’s decision and an authority by which she appointed a registered migration agent, Ms Thu Bannan, to be her representative and authorised recipient for correspondence for the purposes of the review.
On 23 October 2015, the Tribunal wrote to the applicant via her agent to invite her to attend a hearing on 26 November 2015. She was requested to provide a copy of her current CoE, evidence of her previous studies in Australia and overseas, an explanation of any gaps in her studies, evidence that she had sufficient funds, or access to funds, to pay her course fees, living costs and travel costs (and school costs if necessary), evidence of her English proficiency and that she had successfully completed secondary schooling to year 12 level. This Tribunal requested that this information be provided at least 7 days before the hearing.
On 24 November 2015, the Tribunal received a submission from the applicant’s agent enclosing:
·CoE for the applicant for Certificate IV in Commercial Cookery at William Angliss Institute. This indicates that the total tuition fee is $23,000, of which $8,500 has been prepaid. The start date is 9 February 2015 and the end date is 30 June 2016;
·school reports since the applicant’s arrival in Australia in 2013;
·IELTS test report form issued to the applicant on 13 August 2015 indicating that she obtained an overall band score of 6.0 in a test she undertook on 1 August 2015;
·statement from the applicant regarding her reasons for enrolling in the Certificate IV in Commercial Cookery;
·statement of results from year 11, on which basis the applicant was accepted into the William Angliss course; and
·letter (with certified English translation) from the applicant’s parents, dated 17 March 2015, undertaking to support the applicant financially for the Certificate IV course. They state that they have a credit loan agreement with the Asia Joint-Stock Commercial Bank in Vietnam for VND 660,000,000 (equivalent to AUD $38,850) issued on 16 March 2015, which will cover the applicant’s outstanding tuition fees, living and return travel costs.
The applicant appeared before the Tribunal on 26 November 2015 to give evidence and present arguments. The Tribunal also received submissions from her agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
Following the hearing, the Tribunal received additional material from the applicant and her agent, being:
·letter of confirmation (with certified English translation) from the Asia Joint-Stock Commercial Bank (Hai Phong branch) dated 20 March 2015 that the bank has approved a credit line of VND 660,000,000 to Mrs Dinh Thi Tam and Mr Luu Dinh Son, for the applicant’s overseas study. The line of credit is effective from 16 March 2015 and expires on 16 October 2016. The collateral for the loan is real estate owned by Mrs Dinh Thi Tam and Mr Luu Dinh Son;
·balance confirmation (with certified English translation) issued by the Hai Phong Bank for Agriculture and Rural Development on 26 November 2015 indicating that Mrs Dinh Thi Tam’s current account balance is VND 500,000,000;
·certificate of business registration (with certified English translation) for Dinh Thi Tam showing she has a business trading in seafood and aquatic products which has been registered since 18 March 2010;
·letter from Fiona Sayner, High School Coordinator of Ozford College, dated 2 December 2015, confirming that the applicant successfully completed 6 units of year 11 in 2014; and
·statement by Dinh Thi Tam that she and her husband have a seafood and aquatic products business and that their total monthly income from the business is approximately VND 60,000,000.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, as the applicant currently is enrolled in a Certificate IV of Commercial Cookery as her 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.
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.
On the evidence before the Tribunal, the applicant in this case has not at any relevant time been 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?
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.
In this case, the applicant holds a passport of Vietnam. 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.
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 proficiency
The Tribunal is satisfied on the basis of the documentary evidence before it that the applicant obtained an overall band score of 6 in an IELTS test that she undertook on 1 August 2015, which is less than 2 years before making the present visa application. There is no evidence that she has undertaken, or will undertake, an ELICOS before commencing her principal course.
Accordingly, the Tribunal is satisfied that she meets the English proficiency requirement set out in item 5A407(a).
Financial capacity
In summary, the applicant must demonstrate that she has funds from an acceptable source that are sufficient to meet her course fees, living costs and school costs (if applicable) for the first 12 months from when she might be expected to be granted the visa, and for her travel costs.
At the hearing, the Tribunal discussed these costs with the applicant based on the oral and documentary evidence provided by her. She concurred that the costs should be calculated as follows:
·outstanding tuition fees: $15,050 – further $8,150 recently paid: $6,900;
·living costs (assuming that, if successful, she would be granted a student visa in December 2015 and would remain in Australia after her course for 2 months, to August 2016) for her of $12,400 (pro rata calculation based on set amount of $18,610 per year); and
·return travel costs: $3,000
·TOTAL: $22,300 (or approximately VND 370,481,055 as at the date of the Tribunal’s decision: >
The Tribunal is satisfied that the applicant is single and has no children so there are no school costs to be taken into account.
As noted above, the applicant relies upon a line of credit facility issued by the Asia Joint-Stock Commercial Bank for VND 660,000,000 [approximately AUD $40,061] on 16 March 2015 to her parents Mrs Dinh Thi Tam and Mr Luu Dinh Son. The Tribunal is satisfied from the documentary evidence provided to the Department that Mrs Dinh Thi Tam and Mr Luu Dinh Son are the applicant’s parents. It is further satisfied from the Bank documents that overdraft facility is secured by real estate owned by the applicant’s parents, and that the line of credit facility is valid until 16 October 2016. The Tribunal notes that the balance of the available funds is VND 500,000,000 (approximately AUD $30,350) as at 26 November 2015.
The Tribunal notes that whilst Schedule 5A contains no definition of the term 'loan', it has been held to encompass a legally enforceable agreement by which a financial institution promises to advance funds to a borrower on condition that the funds advanced be repaid. It is not dependent upon any or all of the funds agreeing to be lent coming into the possession of the borrower, nor is it contingent upon there being a repayment schedule. In this respect, the term 'loan' may encompass a range financial arrangements such as an 'overdraft' or a ‘line of credit’ as they would both appear to share the same broad characteristics of an enforceable agreement to provide funds on condition of repayment. Accordingly, the Tribunal accepts that the line of credit issued to the applicant’s parents is a loan for these purposes, and is further satisfied that the the Asia Joint-Stock Commercial Bank is a financial institution for the purposes of Schedule 5A.
The Tribunal is satisfied that the applicant’s parents are acceptable individuals as set out in clause 5A101 of Schedule 5A. Moreover, the Tribunal is satisfied that a loan from a financial institution to an acceptable individual (or individuals) is specified as being funds from an acceptable source as set out in paragraph (b) of the definition of ‘funds from an acceptable source’ in item 5A408(2).
As the applicant’s proposed stay in Australia does not exceed 12 months, she is not required to make a declaration that she has access to sufficient funds to meet costs for the remainder of her stay in excess of 12 months.
As the amount of the money deposit held by the applicant exceeds the amount required to be demonstrated by her, the Tribunal finds that she has demonstrated the requisite financial capacity in accordance with the Schedule 5A requirements.
Other requirements
In support of her application, the applicant provided documentary evidence from Ozford College on the basis of which the Tribunal is satisfied and finds that she has completed secondary education to the Year 11 equivalent. The course in which she is enrolled is a vocational education and training course. Accordingly the Tribunal is satisfied and finds that the applicant meets the ‘other’ requirements in cl.5A409.
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).
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
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.
Alison Mercer

Member
ATTACHMENT – Extracts from the Migration Regulations 1994
Schedule 2 – Part 572 (Vocational Education and Training Sector)
…
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.
…
Schedule 5A – Part 4 – Subclass 572 Vocational Education and Training Sector
...
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.

[2015] AATA 3824

4 December 2015

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