1514465 (Migration)

[2016] AATA 3762

1514465 (Migration) [2016] AATA 3762 (26 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sudipta Das JOY
Ms Antara DAS

CASE NUMBER:  1514465

DIBP REFERENCE(S):  BCC2015/2371237

MEMBER:Gina Towney

DATE:26 April 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

·cl.573.223 of Schedule 2 to the Regulations; and

·The second applicant satisfies 573.322.

Statement made on 26 April 2016 at 1:41pm

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 20 October 2015 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 17 August 2015. At the time of lodgement, Class TU contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. In the present case, the delegate assessed the first named applicant (the applicant) against the criteria for a Subclass 573 visa on the basis of enrolment in a Bachelor of Information Technology, and a Masters of Business. The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.573.223 of Schedule 2 to the Regulations.

4. The applicants were represented in relation to the review by their registered migration agent, Ms Yunus Yip, of QC Education and Migration Centre, who provided detailed and useful submissions to the Tribunal.  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 has completed the Bachelor of Information Technology, and is currently enrolled in the Masters of Business as his principal course, the subclass that may be granted is Subclass 573. 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 573, this requirement is contained in cl.573.223, which is extracted in the attachment to this decision.

6. The requirements of cl.573.223 differ depending upon whether or not the applicant is, and was at the time of application, an ‘eligible higher degree student’ who has a confirmation of enrolment (COE) in each course of study for which they are such a student. ‘Eligible higher degree student’ is defined in cl.573.111 to mean an applicant for a Subclass 573 visa who is enrolled in a bachelor’s degree or a masters degree by coursework, or for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector, and any preliminary course, with an eligible education provider or, in some cases, an educational business partner. Eligible education providers, and educational business partners, are those specified by the Minister in an instrument.

7. On the evidence before the Tribunal, the applicant in this case is, and was at time of application, an eligible higher degree student who has a COE for each relevant course of study.  The applicant is currently enrolled in an eligible degree at Holmes Institute Pty Ltd, which is an eligible education provider: IMMI [15/096]. 

8. To meet cl.573.223 therefore, the applicant must give evidence that they have a level of English that satisfies the education provider, and the educational qualifications required by the provider. 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 has sufficient funds to meet the costs and expenses during the proposed stay.

   Does the applicant meet the applicable evidentiary requirements?

9. In the current matter the Tribunal finds that the applicant’s level of English and educational qualifications satisfies the education provider, evidenced by the education provider enrolling the applicant.

10. In addition the Tribunal finds that the applicant is a genuine student, based on the successful studies that he has already completed in Australia, including a Bachelor of Information Technology. The Tribunal also finds that the applicant intends to comply with applicable visa conditions, as he has continued to study whilst in Australia as the holder of a student Visa. The Tribunal also accepts that the applicant has sufficient funds to meet the costs and expenses during his proposed stay, as evidenced by the bank loan provided to the applicant’s mother, and evidence of transfer of money from the applicant’s mother to the applicant.

11. Given these findings, the applicant meets the evidentiary requirements in cl.573.223(1A)(a).

12. For the sake of completion the Tribunal notes that had the applicant been assessed against the relevant assessment level 3 (as per instrument 14/014) the Tribunal would have found the following:

    ·That the applicant satisfied the English language requirements, through the provision of the IELTS test dated 28 February 2015 with an overall band score of 6.0;

    ·The applicant satisfied the financial capacity requirements, using the following calculations; course fees $21,000 (remaining on COE), living costs of $13,957.79 for the applicant (being living costs at $1550.83 per month, for the remaining eight months of the course plus one month), and $4930.11 for his spouse (being living costs of $547.79 per month for nine months), plus airfares of $2000. This makes a total of $41,877.58. The applicant provided evidence of a loan to his mother in the amount of 2.7 million BDT, which is the equivalent of AU$43,802.20.  The applicant also provided evidence of the regular income of his mother, and evidence of financial transfer from the mother to the applicant;

    ·The applicant satisfied other requirements, through having achieved a Bachelor of Information Technology, which is the equivalent to or above a Certificate IV.

13. 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

14. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

    ·cl.573.223 of Schedule 2 to the Regulations, and

    ·The second applicant satisfies 573.322.

    Gina Towney

    
    

    Member

    ATTACHMENT – Extracts from the Migration Regulations 1994

    573.223(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 higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree 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 573.223(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.