1510976 (Migration)

[2016] AATA 3150

1510976 (Migration) [2016] AATA 3150 (28 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nhico Ruly Mangalonzo

CASE NUMBER:  1510976

DIBP REFERENCE(S):  BCC2015/1719067

MEMBER:Adrian Ho

DATE:28 January 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.572.223(2)(a) of Schedule 2 to the Regulations.

Statement made on 28 January 2016 at 1:13pm

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 30 July 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 June 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 first-named applicant (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. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. In the present case, as the applicant proposes to study multiple VET sector courses (the COEs for which have been provided to the Department), and the subclass that may be granted is Subclass 572.

6. The issue in the present case is whether the applicant has provided 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.

7. To meet this criterion, 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.

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

8. 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.

9. In this case, the applicant holds a passport of the Philippines.  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.

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

    English language proficiency

11. The applicant has provided to the tribunal well before the tribunal hearing evidence that he proposes to study an ELICOS course before undertaking a package of courses leading to his principal course of a diploma of hospitality (f.60).  Due to the prolonged tribunal review process the applicant has completed the ELICOS course he has proposed while waiting for a hearing with the tribunal.  Despite him having completed the course, the tribunal is satisfied he has given evidence that he will undertake the course and his completion of the course confirms that he has done as he had proposed.

12. He has provided the tribunal with evidence that he has achieved an overall score of 5.0 in an IELTS test taken less than 2 years before the visa application was made.

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

    Financial capacity

14. The applicant has provided evidence of a bank balance held at the NAB in the name of the applicant’s mother and stepfather which during the 3 months before the visa application was made was no less than $38000 in credit. 

15. The tribunal finds that taking into account living costs for the period, outstanding course fees for the period, and return travel costs, the applicant must provide evidence of having AUD 33010 in funds.  The applicant’s stepfather is a parent by r.1.14A and an acceptable individual, as is his mother.

16. The funds available on deposit at an Australian bank exceed the amount of funds that must be shown. 

17. On the evidence, the applicant’s stepfather’s salary of 71325 MYR per month reveal an income which is sufficient to accumulate the level of funding provided. 

18. The applicant has given evidence in accordance with Schedule 5A Item 5A408.

    Other matters

19. 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.

20. 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).

21. 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

22. 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.

    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.