1508116 (Migration)

1508116 (Migration) [2016] AATA 3470 (3 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yangyang Li
CASE NUMBER:  1508116
DIBP REFERENCE(S):  BCC2014/848422
MEMBER:Alison Mercer
DATE:3 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.572.222 of Schedule 2 to the Regulations;
·cl.572.223(2)(a) of Schedule 2 to the Regulations; and
·cl.572.225 of Schedule 2 to the Regulations.

Statement made on 03 March 2016 at 12:33pm

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 26 May 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 26 March 2014. 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 573 visa. The visa was refused because the applicant did not provide the evidence required to demonstrate he was a genuine student as required by cl.573.223 of Schedule 2 to the Regulations in relation to his English proficiency. The delegate further noted that the applicant had not provided evidence of current Overseas Student Health Cover (OSHC) and that it appeared that his CoE had been cancelled, according to his PRISMS record. As a result, the delegate found that the applicant also did not meet cl.572.222 or cl.572.225 of Schedule 2 to the Regulations.
The Tribunal received a review application from the applicant on 15 June 2015. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Sean Dong, to be his representative and authorised recipient for correspondence for the review.
On 22 January 2016, the Tribunal wrote to the applicant via his agent to invite him to a hearing on 24 February 2016. He was requested to provide documentary evidence in support of his case at least 1 week before the Tribunal hearing.
On 23 February 2016, the Tribunal received the following scanned documents from the applicant’s agent via email:
·CoE for the applicant for an Advanced Diploma at Le Cordon Bleu (Melbourne), starting 9 July 2015 and finishing 30 September 2017, with total tuition fees of $32,635 of which $8,650 had been prepaid;
·academic transcript from Le Cordon Bleu indicating that the applicant had completed 15 subjects as at 21 January 2016;
·IELTS test report form issued 25 July 2014, indicating that the applicant obtained an overall band score of 5.5 in a test he took on 12 July 2014;
·Intermediate and Upper Intermediate results for the applicant from RMIT English Worldwide, 2012;
·academic transcripts from the applicant’s previous courses in Australia;
·Diploma of secondary schooling issued to the applicant in Beijing in 2009 (and certified English translation);
·NIB Overseas Student Health Cover (OSHC) policy for the applicant, valid from 17 June 2015 to 30 November 2017; and
·3 certificates of deposit from the Bank of China:
oone dated 13 June 2015 in name of Li Cuihong for RMB 200,000, deposited 29 September 2014;
oone dated 19 February 2016 in name of Li Cuihong for RMB 200,000 deposited 15 October 2015; and
oone dated 6 November 2013 in name of Li Bin for RMB 200,000, deposited 29 September 2013.
The applicant appeared before the Tribunal on 24 February 2016 to give evidence and present arguments. The Tribunal also received submissions from his agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant and his agent provided a letter dated 8 February 2016 from the applicant’s education provider, Le Cordon Bleu (Melbourne), confirming he is currently enrolled in an Advanced Diploma of Hospitality there.
At the conclusion of the hearing, the applicant and his agent were given until 2 March 2016 to provide additional material clarifying the applicant’s parents’ income and his outstanding tuition fees for his course.
On 2 March 2016, the Tribunal received the following additional scanned documents by email from the applicant’s agent:
·notarial certificate (and English translation) stating that the applicant’s father is Li Bin and his mother is Li Cuihong;
·diploma (and English translation) certifying that the applicant graduated from senior high school in Beijing in 2009;
·3 invoices issued by Le Cordon Bleu indicating that the applicant paid $11,915 in fees on 23 June 2015, $9,145 in fees on 22 September 2015, and $11,922 on 29 February 2016 (at which time no further fees were payable); and
·employment and income statement (and English translation) issued on 26 February 2016 by HR Manager, Beijing Haidan District Subdistrict Office of Dawn certifying that Li Bin has worked in that department since October 2004 and is currently a section chief in the Civil Servant Area with a yearly after tax salary of RMB 126,129.
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 an Advanced Diploma of Hospitality as his principal course, the subclass that may be granted is subclass 572 (notwithstanding the delegate’s references in part of the primary decision to subclass 573). The issue in the present case is whether:
·he applicant is currently enrolled in a registered course;
·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; and
·the applicant has provided evidence of OSHC.
CoE
The Tribunal is satisfied from the letter dated 8 February 2016 provided by the applicant at hearing, the CoE provided by him and his PRISMS record, that he is currently enrolled in, and attending, an Advanced Diploma of Hospitality course, the commencement date of which was 9 July 2015 and the end date of which is 30 September 2017.
The Tribunal is therefore satisfied that the applicant meets cl.572.222.
To meet cl.572.223, 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. 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?
To meet cl.572.223, 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. 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.
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.
In this case, the applicant holds a passport of the People’s Republic of China. 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 proficiency
The applicant has now provided evidence of an IELTS test report form issued 25 July 2014, indicating that he obtained an overall band score of 5.5 in a test he took on 12 July 2014. As this is less than 2 years after he made his current visa application, the Tribunal is satisfied that he meets item 5A407(a) and thus meets item 5A407 as a whole.
Financial capacity
At hearing, the Tribunal indicated that it calculated that the applicant had to provide evidence of funds to meet the following:
·outstanding tuition fees: $23,985 ($32,635 - $8,650);
·living costs: $18,610;
·travel costs: $1,500
·TOTAL: $43,095 (equivalent to approximately RMB 199,693).
The Tribunal is satisfied that the applicant is single and is therefore not required to provide evidence of funds to meet the living or school costs of any dependents.
The applicant told the Tribunal that he had paid additional tuition fees and provided evidence of this after the hearing that he had paid all outstanding fees for the next 12 months. The Tribunal therefore recalculated the funds he is required to demonstrate as follows:
·outstanding tuition fees: $0;
·living costs: $18,610;
·travel costs: $1,500
·TOTAL: $20,110 (equivalent to approximately RMB 96,179: ).
The applicant and his agent indicated that the applicant relied upon the Bank of China money deposit of RMB 200,000 held by the applicant’s parents, Li Bin and Li Cuihong, which had been held since September 2013. The Tribunal accepts that this amount exceeds the funds that the applicant is required to demonstrate as calculated above.
The Tribunal indicated that, based on the evidence on the Department’s file, it accepted that the applicant’s parents were Li Bin (father) and Li Cuihong (mother) and that the amount of RMB 200,000 appeared to have been held by them in turn with the Bank of China since September 2013, more than 3 months before the applicant made his current application in March 2014. However, it noted that it had no evidence that his parent’s regular income was sufficient to accumulate the term deposit amount. The applicant and his agent subsequently provided proof of his father’s income following the hearing. The Tribunal is satisfied that the applicant’s father has been a civil servant with a government department for 12 years and currently earns RMB 126,199 per year after tax as a section chief. The Tribunal is further satisfied from the documents provided that the amount of RMB 200,000 was initially deposited by the applicant’s father in September 2013, more than 3 months prior to the applicant’s visa application on 26 March 2014, then transferred to the applicant’s mother’s name where it has been renewed periodically.
The Tribunal is satisfied that the applicant’s parents are acceptable individuals for the purposes of Schedule 5A and that the funds in money deposit held by them with the Bank of China (which it accepts to be a financial institution for the purposes of Schedule 5A) in turn have been held for more than 3 months immediately prior to the applicant’s visa application.
The applicant’s visa application form includes a declaration by him that he will have access to sufficient funds to cover his costs beyond the first 12 month period.
Accordingly, the Tribunal is satisfied that the applicant meets the requirements of item 5A408.
Other requirements
The Tribunal is satisfied that the applicant is enrolled in a vocational course, and that he has provided evidence of having completed at least the equivalent of year 11 education in China. It therefore finds that he meets item 5A409(a) and satisfies item 5A409 as a whole.
Health Cover
The Tribunal has received evidence from the applicant indicating that he has NIB OSHC valid until November 2017. The Tribunal is satisfied that he therefore meets cl.572.225.
On the basis of the above, the Tribunal finds that 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.572.222 of Schedule 2 to the Regulations;
·cl.572.223(2)(a) of Schedule 2 to the Regulations; and
·cl.572.225 of Schedule 2 to the Regulations.
Alison Mercer

Member
ATTACHMENT – Extracts from the Migration Regulations 1994
SCHEDULE 2 TO THE REGULATIONS – PART 572
…
572.222
(1) Except if subclause (2) applies or if the application was made on form 157E, the applicant gives to the Minister a certificate of enrolment relating to the applicant undertaking a course of study the provider of which is not a suspended education provider (an acceptable course).
(2) If a failure of electronic transmission has prevented an education provider from sending a certificate of enrolment and the Minister is satisfied that the applicant needs to travel urgently, the applicant gives to the Minister satisfactory evidence that the applicant is enrolled in an acceptable course.
(3) If the application was made on form 157E, the applicant is enrolled in an acceptable course.
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 (2).
(2)An applicant meets the requirements of this subclause if:
(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.
…
572.225
The applicant gives to the Minister evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.
SCHEDULE 5A – PART 4 – SUBCLASS 572
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.
(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.
(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.

[2016] AATA 3470

3 March 2016

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Immigration

Administrative Law

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Judicial Review

Jurisdiction

Procedural Fairness

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