1511334 (Migration)
[2016] AATA 3629
•6 April 2016
1511334 (Migration) [2016] AATA 3629 (6 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Vedrana Kitic
CASE NUMBER: 1511334
DIBP REFERENCE(S): BCC2015/1571988
MEMBER:Mary-Ann Cooper
DATE:6 April 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 06 April 2016 at 9:41am
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 31 July 2015 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 2 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).
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 III in Aged Care. 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.
The applicant appeared before the Tribunal on 8 March 2016 to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent who also attended the hearing.
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 in Business, a Diploma and an Advanced Diploma in Leadership and Management 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 Bosnia Herzegovina. The assessment level for a holder of such a passport for Subclass 572 (the subclass for the applicant’s principal course) is assessment level 2: IMMI 14/014 The applicant is also proposing to undertake a Certificate IV and Diploma as noted above, which are not an ELICOS, which also have an assessment level of 2 specified for the applicant’s passport: IMMI 14/014. In this case, the highest assessment level to which the applicant is subject is assessment level 2.
The evidentiary requirements for this assessment level for Subclass 572 are set out in Part 4 of Schedule 5A and are attached to this decision.
Clause 5A410 - English language proficiency
Pursuant to cl.5A410, the applicant must give evidence that he or she has a level of English language proficiency that satisfies his or her proposed education provider.
The COEs provided by the applicant indicate that the applicant is required to demonstrate a score of 5.5 in an IELTS test. The applicant has provided the Tribunal with a copy of her IELTS test, undertaken on18 April 2015, in which she achieved an overall score of 5.5.
The Tribunal therefore finds that clause 5A410 is met.
Clause 5A411 - Financial capacity
The applicant is required to give evidence of funds from an acceptable source that are sufficient to meet her course fees and living costs for the first 12 months. School costs are not relevant in this case as the applicant does not have any school age dependent children.
The ‘first 12 months’
The ‘first 12 months’ is defined in Clause 5A101 as follows:
first 12 months,
for an applicant, means the period that:
(a) begins:
(i) if the application is made outside Australia — on the day of the applicant’s expected arrival in Australia; or
(ii) if the application is made in Australia — on the day that the student visa is expected to be granted to the applicant; and
(b) ends on the earlier of the following:
(i) the day 12 months after the beginning of the period;
(ii)the last day of the applicant’s proposed stay in Australia.
In this case the first 12 months begins on the expected date of visa grant, which the Tribunal assesses to be 29 April 2016. The first 12 months ends on the earlier date of either 12 months later or the last day of the applicant’s proposed stay in Australia. The applicant’s Advanced Diploma in Leadership is proposed to end on 2 September 2018. The Tribunal therefore finds the “first 12 months” ends on 29 April 2017.
Course fees
‘Course fees’ are defined in Clause 5A101 to mean the fees for each course proposed to be undertaken by the applicant in the period. The applicant’s CoEs state that the total course fee for this period, for the Certificate IV in Business and the Diploma in Leadership are $9000. The Tribunal considers it appropriate to deduct from the total course fees, any amounts the applicant has already paid. Following the hearing the applicant provided a document from her college confirming that she had paid $1950. The Tribunal therefore finds the course fee owed by the applicant for the relevant period is $7050.00.
Living costs
‘Living costs’ are $18,610 per year for a single person with no dependent children (subclause 5A104(1) and IMMI 14/004). This is the ‘basic rate’.
Travel costs
Clause 5A411(1)( c)also requires that the applicant has given evidence that she has funds from an acceptable course that are sufficient to meet travel costs. ‘Travel costs’ are defined in Clause 5A101 as:
travel costs,
for an applicant, means the sum of costs for each of the applicant and any family applicant:
(a) if the applicant or family applicant is not in Australia when the application is made — of travelling to Australia; and
(b) of returning to the applicant’s home country at the end of his or her stay.
The applicant’s home country is Bosnia Herzegovina. The applicant confirmed at the hearing that the cost for one economy one way ticket from Melbourne varies but is approximately $1,800.
Total costs
In accordance with clause 5A411, the Tribunal finds that the applicant’s total course fees, living costs and travel costs for the first 12 months are as follows:
Course fees $ 7050
Living costs for 7 months $18,610
Travel costs $ 1,800
Total $27,460
The applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $27,460.
Funds from an acceptable source
‘Funds from an acceptable source’ is defined in subclause 5A411(2) to not include the value of an item of property. ‘Acceptable source’, is not defined for assessment Level 2.
The applicant had provided evidence to the Tribunal of her father’s bank details and claimed that he would provide her with financial support. The Tribunal sought evidence of her relationship to the person whose financial documents were provided. Following the hearing a copy of a birth certificate was provided. Although not a certified copy of an original, and untranslated, the Tribunal accepts that the person whose funds the applicant relies on to demonstrate she has the necessary financial support are those of her father.
Certified translations of various financial documents were provided. One was from the Doboj Branch of the Nova Bank and stated that the applicant’s father had deposits of 46.840.50 BAM in his account for the period 4 October 2013 to 4 December 2015. Converted to Australian dollars, this is $35,823.47, in excess of the funds required.
The Tribunal is therefore satisfied that the applicant’s evidence of her father’s funds constitutes evidence of funds from an acceptable source and meets the financial capacity requirements of clause 5A411(1)(a) and (b).
The applicant made a declaration in her visa application that she has access to funds from an acceptable source that are sufficient to support her for the total period of her stay in Australia. She therefore meets clause 5A411(c).
Clause 5A411(1A) does not apply to her circumstances.
The Tribunal therefore finds that the requirements of cl.5A411 of Schedule 5A are met.
On the basis of the above, the applicant has given evidence in accordance with the applicable Schedule 5A requirements for her highest assessment level and therefore satisfies cl.572.223(2)(a).
CONCLUSION
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
Mary-Ann Cooper
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.
Part 4 - Subclass 572 (Vocational Education and Training Sector)
Division 4 - Requirements for assessment level 2
Clause 5A410 English language proficiency
The applicant must give evidence that he or she has a level of English language proficiency that satisfies his or her proposed education provider.
Clause 5A411 Financial capacity
(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
(b) evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and
(c) 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.5A411 (1A) If the applicant is:
(a) fully funded; or
(b) 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.
5A411 (2) In this clause, funds from an acceptable source does not include the value of an item of property.
Key Legal Topics
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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