1516825 (Migration) - [2016] AATA 4082

1516825 (Migration) [2016] AATA 4082 (8 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad NAUMAN
CASE NUMBER:  1516825
DIBP REFERENCE(S):  BCC2015/2765670
MEMBER:Alison Mercer
DATE:8 July 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 573 Higher Education Sector visa:
·cl.573.223(2)(a) of Schedule 2 to the Regulations.

Statement made on 08 July 2016 at 1:07pm

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 27 November 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 22 September 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).
In the present case, the delegate assessed the applicant against the criteria for a subclass 573 visa on the basis of enrolment in a Bachelor of Business (Accounting). 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.
The Tribunal received a review application from the applicant on 7 December 2015, which was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Mr Harpal Singh Bhajwa, to be his representative and authorised recipient for correspondence for the purposes of the review.
On 22 March 2016, the applicant’s agent provided a copy of a PTE Academic Test Taker Score Report showing that the applicant obtained a score of 63 in a test he undertook on 22 February 2016. On 14 June 2016, the applicant’s agent provided an updated Confirmation of Enrolment (CoE) for the applicant showing that he was enrolled in a Bachelor of Business (Accounting) at Cambridge International College, which started on 11 January 2016 and was due to finish on 15 October 2017. The tuition fees were listed as $31,000 with no fees prepaid.
On 6 July 2016, the applicant’s agent provided various scanned documents by email, including:
·copies of various CoEs for the applicant;
·statement of academic results to date for his Bachelor of Business (Accounting) degree, as at 23 June 2016;
·statement of account from Cambridge International College dated 23 June 2016 showing payments by the applicant made since January 2016 and listing his outstanding fees as $23,305; and
·letter dated 28 June 2016 from the Sindh Bank in Pakistan certifying that Mr Muhammad Yousuf Mukhi maintained an account with a balance of PKR 4,000,000 [approximately AUD $50,883], against which was secured a running finance facility of PKR 3,600,000 [approximately AUD $45,792].
The applicant appeared before the Tribunal on 8 July 2016 to give evidence and present arguments.
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 Bachelor of Business (Accounting) 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.
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.
On the evidence before the Tribunal, the applicant in this case has not at any relevant time been an eligible higher degree student with a corresponding COE and cl.573.223(1A) does not apply. As such, to meet cl.573.223, 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 Pakistan. The assessment level for a holder of such a passport for Subclass 573 (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 573 are set out in Part 5 of Schedule 5A and are extracted in the attachment to this decision.
English proficiency
The applicant has now provided a PTE Academic Test Taker Score Report indicating that he obtained an overall score of 63 in an English test he undertook on 22 February 2016. The Tribunal is satisfied that he is not undertaking an ELICOS course before his principal Bachelor degree course. Clause 5A507(1)(a) requires that he must therefore have achieved, in an IELTS test that was taken less than 2 years before the date of his visa application, an overall band score of at least 6, or the required score in an English language proficiency test that is specified in a legislative instrument made by the Minister under clause 5A102. The relevant instrument in this case is IMMI 14/080.
As noted by the delegate, the applicant has undertaken an IELTS test in which he achieved the required score but did so more than 2 years before making his visa application. Accordingly, the Tribunal has considered his PTE Academic Test Taker Score Report. IMMI 14/080 provides that the Pearson Test of English (PTE) Academic is a specified language proficiency test and stipulates that, for the purposes of clause 5A507(1)(a), the required score is 50. The Tribunal finds that the applicant’s score of 63 exceeds this, and that he obtained it in a test taken less than 2 years before his visa application.
Accordingly, the Tribunal finds that the applicant meets clause 5A507(1)(a) of Schedule 5A.
Financial capacity
Clause 5A508 requires the applicant to provide e3vidence that he 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 (if applicable); and
(iv) return travel costs.
He must also provide a declaration stating that he has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of his proposed stay in Australia after the first 12 months, and 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 to the applicant.
The Tribunal has regard to the applicant’s current CoE indicating that he is enrolled in a Bachelor of Business (Accounting) degree with a start date of 11 January 2016 and a finish date of 15 October 2017. The CoE lists the total tuition fees as $31,000 but the applicant has provided an updated statement of account dated 23 June 2016 from his education provider listing his fee payments since January 2016 and indicating that the balance of his outstanding fees is now $23,305. The Tribunal is satisfied from the applicant’s visa application that he is single and thus does not have to demonstrate school or living costs for any dependents.
The Tribunal calculates the funds required to be demonstrated by the applicant as follows:
·tuition fees: $18,644 (pro-rata amount based on outstanding fees of $23,305 apportioned over the remaining 15 months of the applicant’s course);
·living costs: $18,610;
·travel costs (say): $1,500;
·TOTAL: $38,754 [approximately PKR 3,045,312: >
The applicant relies on a letter dated 28 June 2016 from the Sindh Bank certifying that Mr Muhammad Yusuf Mukhi maintains an account with the bank, the current balance of which is PKR 4,000,000 [approximately AUD $50,819], against which he has a running finance facility of PKR 3,600,000 [approximately AUD $45,737]. The Tribunal is satisfied, on the basis of the biodata page of the applicant’s passport, that Mr Muhammad Yusuf Mukhi is the applicant’s father and thus an acceptable individual for Schedule 5A purposes. It is further satisfied that a running finance facility falls within the meaning of a loan for the purposes of Schedule 5A.
At the hearing, the applicant told the Tribunal that for the purposes of his original student visa application, he had provided financial documentation for his father, showing that his father is the sole proprietor of a chemical and dye company in Pakistan. The applicant estimated his father’s monthly income to be about 400,000 PKR [approximately AUD $5,093 per month, or approximately AUD $61,116 per year]. The applicant told the Tribunal that his father wires money to him as needed, and was responsible for sending money for the applicant to pay his tuition fees, although the applicant said that he also has a part-time job within the terms of his student visa.
The Tribunal accepts the applicant as a credible witness and accepts that his father maintains the above credit facility with the Sindh Bank, that he has regular income sufficient to have accumulated the funds that form the deposit that secures the credit facility, and that the sum of PKR 3,600,000 [approximately AUD $45,737] is available for the applicant to access as needed from his father.
Other requirements
The Tribunal is satisfied that the applicant has provided the Department with proof that he has completed secondary schooling and a Bachelor of Commerce degree in Pakistan prior to coming to study in Australia.
The Tribunal finds that he meets clause 5A509(a).
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.573.223(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 573 Higher Education Sector visa:
·cl.573.223(2)(a) of Schedule 2 to the Regulations.
Alison Mercer

Member
ATTACHMENT – Extracts from the Migration Regulations 1994
Schedule 2: Part 573 (Higher Education Sector)
...
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.
…
Schedule 5A: Part 573
…
Division 3 - Requirements for assessment level 3
Clause 5A507    English language proficiency
[5A507] (1) 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 6.0 or the required score in an English language proficiency test that is specified in a legislative instrument made by the Minister under clause 5A102;
(aa) the applicant has:
(i)      achieved, in an IELTS test that was taken less than 2 years before the time of making the application, an Overall Band Score of at least 5.5 or the required score in an English language proficiency test that is specified in a legislative instrument made by the Minister under clause 5A102; and
(ii) enrolled in a foundation course before commencing the applicant’s principal course;
(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 5.0 or the required score in an English language proficiency test that is specified in a legislative instrument made by the Minister under clause 5A102;
(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 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.
[5A507] (2) For subclause (1), an applicant is not required to give evidence of English language proficiency if:
(a) the application was made outside Australia; and
(b) the applicant:
(i) provides a certificate of enrolment in a course that has been specified by the Minister in a legislative instrument under subregulation 1.44(2) (the specified course); and
(ii)      will not undertake any other course before commencing the specified course.
Clause 5A508    Financial capacity
[5A508] (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.
[5A508] (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.
[5A508] (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;
(iii) 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;
(b) 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;
(c) a loan from a financial institution made to, and held in the name of, an acceptable individual;
(d) a loan from the government of the applicant’s home country;
(e)      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 5A509    Other requirements
[5A509]    The applicant must give evidence that:
(a) he or she has successfully completed secondary schooling to the year 12 level (or its equivalent); or
(b) he or she:
(i) has successfully completed secondary schooling to the year 11 level (or its equivalent); and
(ii) has successfully completed in Australia a foundation course; or
(c) he or she:
(i) has successfully completed secondary schooling to the year 11 level (or its equivalent); and
(ii) has a certificate of enrolment in a foundation course that is to be undertaken in Australia before commencing the applicant’s principal course; or
(d) he or she:
(i) has successfully completed secondary schooling to the year 11 level (or its equivalent); and
(ii) has 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; or
(e) he or she has successfully completed a qualification from the Australian Qualifications Framework at the Certificate IV level or higher in a course that was conducted in Australia; or
(f) he or she has a certificate of enrolment in a course that:
(i) leads to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; and
(ii) is to be undertaken in Australia before commencing the applicant’s principal course; or
(g) he or she has successfully completed a qualification from the Australian Qualifications Framework at the Certificate IV level or higher in a course that:
(i) is specified by the Minister in an instrument in writing for this subparagraph; and
(ii) was conducted outside Australia.