1600653 (Migration)

[2016] AATA 4652

1600653 (Migration) [2016] AATA 4652 (3 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sergio Fernando ARDILA ACEVEDO

CASE NUMBER:  1600653

DIBP REFERENCE(S):  BCC2015/3321931

MEMBER:Gina Towney

DATE:3 November 2016

PLACE OF DECISION:  Sydney

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) of Schedule 2 to the Regulations.

Statement made on 03 November 2016 at 12:25pm

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 15 January 2016 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 11 November 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 applicant against the criteria for a Subclass 572 visa on the basis of enrolment in a Diploma of Instrumentation and Control Engineering. The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.572.223 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 18 October 2016 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. An audio recording of the hearing is available.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. In the present case, as the applicant currently is enrolled in a Diploma of Instrumentation and Control Engineering 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.

7. 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.

8. On the evidence before the Tribunal, the applicant in this case is not 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?

9. 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.

10. In this case, the applicant holds a passport of Columbia. 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: IMMI [14014]. In this case, the highest assessment level to which the applicant is subject is assessment level 3.

11. 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.

12. In relation to English language requirements, the applicant has satisfied cl. 5 A 407 through the provision of an International English Language Testing System (IELTS) test result, dated 7 June 2014, showing an overall band school of 5.5. This satisfies cl. 5A 407(a).  This exam was taken less than two years prior to the date of application, with the date of application being 11 November 2015.

13. In relation to financial capacity, the applicant must demonstrate access to funds in the amount of $14,957.47 (all currency will be Australian unless otherwise stated).  This is calculated as follows, set living costs of $1550.83 per month, for a period of nine months (being November 2016 until July 2017 inclusive) making a total of $13,957.47; and estimated travel costs of $1000.  [The applicant has provided evidence that he has no outstanding course costs.]  This is the equivalent to $32,553,800.COP.

14. Post hearing the applicant provided evidence of two bank accounts, one ending product number 0611, and holding a balance of $18,511,934COP, the other ending in product number 4310 and holding $19,358,569COP, making a total of $37,870,503.COP.  The first account has been opened since 2009, and the applicant provided three months of bank accounts to show a relatively steady balance, and the second account has been opened since August 2015, and again the applicant showed three-month bank accounts to demonstrate a relatively steady balance. In addition the applicant provided evidence from his accountant that he had a monthly average income of $5,200,000.COP.  Based on this evidence the Tribunal finds applicant satisfies the financial capacity requirements.

15. In terms of other requirements, the applicant has demonstrated that he has successfully completed secondary schooling to year 11 or its equivalent, this is through the provision of a Diploma of Software Development, dated 10 November 2015, and that he is enrolled in vocational education and training course.

16. 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).

17. 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

18. 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) of Schedule 2 to the Regulations.

    Gina Towney

    
    

    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.