1512600 (Migration)

[2016] AATA 3633

1512600 (Migration) [2016] AATA 3633 (30 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mahasinhage Hasitha Nuwa Dias

CASE NUMBER:  1512600

DIBP REFERENCE(S):  CLF2013/252227

MEMBER:Tim Connellan

DATE:30 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.572.223(2)(a) of Schedule 2 to the Regulations.

Statement made on 30 March 2016 at 2:18pm

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 9 December 2013 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 October 2013. 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 572 visa on the basis of enrolment in a Diploma of Management, a Diploma and and an Advanced Diploma of Business. The visa was refused because the applicant did not provide the evidence required to demonstrate he was a genuine student as required by cl.572.223 of Schedule 2 to the Regulations. Specifically, he failed to provide evidence he met the English language proficiency requirements outlined in 5A404.

4. Having not received the requested information, on 9 December 2013 a delegate of the Minister made a decision to refuse the application.

5. On 23 December 2013 the applicant lodged an application for review of the decision with the Migration Review Tribunal.

6. On 2 April 2014 the tribunal wrote to the applicant and invited him to appear before the tribunal on 8 May 2014 to give evidence and present arguments relating to the issues arising in his case.

7. The applicant did not respond to the invitation or did not attend the scheduled hearing. On 12 May 2014, without any further evidence the applicant met the English proficiency requirements, the tribunal made a decision to refuse the application on the basis of there being no evidence the applicant satisfied the English proficiency requirements of clause 572.223.

8. The matter was appealed to the Federal Circuit Court who found the tribunal had failed to consider the PRISMS record referred to in the primary decision and remitted the matter to the Tribunal for reconsideration.

9. The applicant appeared before the Tribunal at a further hearing on 23 February 2016 to give evidence and present arguments.

10. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. In the present case, as the applicant is currently enrolled in an Advanced Diploma of Business as his 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.

13. 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. 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?

14. 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.

15. In this case, the applicant holds a passport of Sri Lanka.

16. 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.

17. 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.

18. The applicant provided the tribunal with the results of an IELTS test conducted in February 2015 in which he achieved an overall band score of 7.0. The tribunal accepts that this evidence satisfies the English language proficiency requirements.

19. To satisfy the financial capacity requirements the applicant provided evidence of a fixed deposit of Rs.6,120,000 held at the Seylan Bank in the name of his parents. He provided evidence of a loan of 5,500,000 Sri Lankan rupees (A$49,012) against the fixed deposit.

20. The financial evidence was sent to the Department for verification. The verification report advised that the manager of the relevant branch had been spoken to and the documents and arrangements were confirmed as genuine.

21. The tribunal is therefore satisfied that the evidence presented satisfies the financial capacity requirements for the grant of a student visa.

22. 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).

23. 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

24. 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.

    Tim Connellan

    
    

    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 (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.