1601941 (Migration)

[2016] AATA 4679

1601941 (Migration) [2016] AATA 4679 (22 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Mona Parveen Mona Parveen
Mr ATEEQ UR RHAMAN SYED
Master ABDUL RAHMAN SYED

CASE NUMBER:  1601941

DIBP REFERENCE(S):  BCC2015/2424823

MEMBER:Gina Towney

DATE:22 November 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 572 Vocational Education and Training visa:

·cl.572.223(2) of Schedule 2 to the Regulations;

·the secondary applicants satisfying cl. 572.322.

Statement made on 22 November 2016 at 2:48pm

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 17 February 2016 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 21 August 2015.  The courses listed in the application were a Diploma of Management, from 12 October 2015 to 9 October 2016, and an Advanced Diploma of Management, with course dates from 10 October 2016 to 8 October 2017.

3. 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).

4. In the present case, the delegate assessed the first named applicant (the applicant) against the criteria for a Subclass 572 visa on the basis of enrolment in a Diploma of Management and an Advanced Diploma of Management. 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.

5. The applicant appealed to the Tribunal. Prior to the hearing the applicant provided evidence in support of the application. This evidence has been assessed against the relevant criteria, but did not satisfy the requirements.

6. The applicants appeared before the Tribunal on 31 October 2016 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In the present case, as the applicant currently has an offer of enrolment in an Advanced Diploma of 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.

9. 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.

10. 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?

11. 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.

12. In this case, the applicant holds a passport of India.  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[14/014].  The applicant is also proposing to undertake a Diploma, which is not an ELICOS, which has an assessment level of 3 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 3.

13. 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.

14. In relation to English language requirements, the applicant has satisfied Sch 5A407(d)(iii), is less than two years before the date of application, whilst the holder of a student Visa, the applicant completed a Diploma of Business.

15. In relation to other requirements, the applicant has satisfied Sch 5A409, as she has provided evidence that she has completed secondary schooling to year 11 and is enrolled in a vocational education and training course.

16. In relation to financial capacity, the Tribunal calculates that the applicants need to show $51,511. This amount has been calculated by adding the set living costs (for the applicant, being $18,610, the set living costs for her husband, being $6513, and the set living costs for her four children, being $3722 by four equaling $14,888); outstanding course fees of $9000 (as seen in the Certificate of Enrolment dated 18 October 2016) and travel costs of $2500. 

17. Prior to the hearing the applicant provided correspondence from the bank, dated 12 August 2016, recording a bank loan in the amount of Rs.18,00,000, being the equivalent of $39,934. Post hearing the applicant provided a submission, in the form of a bank loan document dated 3 November 2016, in the amount of Rs12,60,000, being the equivalent of $25,153.  The Tribunal finds, on the combination of this evidence, the applicant satisfies the financial criteria. 

18. 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).

19. 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

20. 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 572 Vocational Education and Training visa:

    ·cl.572.223(2) of Schedule 2 to the Regulations;

    ·the secondary applicants satisfying cl. 572.322.

    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.