1602711 (Migration) - [2016] AATA 4484

1602711 (Migration) [2016] AATA 4484 (4 October 2016)
DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Annas Qureshi Qureshi
CASE NUMBER:  1602711
DIBP REFERENCE(S):  BCC2015/3793270
MEMBER:Karen Synon
DATE:4 October 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 04 October 2016 at 8:49am
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 10 February 2016 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 10 December 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 they were a genuine student as required by cl.573.223 of Schedule 2 to the Regulations.
The applicant applied for review of the primary decision on 2 March 2016 and provided a copy of the department’s decision.
The applicant appeared before the Tribunal on 16 August 2016 to give evidence and present arguments.
During the hearing the Tribunal discussed with the applicant the necessity of providing evidence of the calculated financial capacity, IELTS results with an Overall Band Score result of at least 6.0 and evidence that he completed secondary school to year 12. Upon a receipt being provided for a booking of an IELTS test on 30 August 2016 the Tribunal agreed to delay its decision making until 24 September 2016 for this evidence to be provided.
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 language requirements
The applicant provided to the Tribunal (at folio 42) evidence of his successful completion of a Diploma of Accounting which was completed on 1 July 2011. As this is more than 2 years before he applied for this visa it cannot be used to satisfy the English language requirement of 5A407(d)(iii).
Following the hearing the applicant undertook an IELTS test on 20 August 2016 and achieved an Overall Band Score of 7.0 (at folio 65). He therefore satisfies 5A507(1)(a) and the English language proficiency requirement.
Financial Capacity Requirements
The financial capacity the applicant must demonstrate is prescribed in 5A408.
Based on the Certificate of Enrolment (CoE) provided the applicant will complete his Bachelor of Business (Accounting) on 16 October 2016. The Tribunal has therefore calculated the period of 2 months for the calculation of the living costs, based on the day the student visa is likely to be granted.
The living costs are thus calculated as $4,652.
On the basis of the CoE and a receipt (at folio 64) that a further payment of $5,000 had been paid the remaining course fees are $2,750.
The Tribunal considers an estimate of $1,000 for one-way travel to Pakistan to be appropriate.
The applicant must therefore demonstrate financial capacity in the following amounts:

Living costs

$3,102

Course fees

$2,750

Travel costs

$1,000

TOTAL

$6,852

The applicant has provided evidence of a bank account (money deposit) held by Mr Shahabuddin Qureshi in the National Australia Bank. At 20 July 2016 this account had a balance of $46,464.73. The applicant applied for the visa on 10 December 2015 and at 10 September 2015 (3 months immediately before the date of the application), Mr Shahabuddin Qureshi’s bank account had a balance of $23,982.38.
The applicant has provided evidence in the form of a ‘Certificate of Domicile’ dated 5 January 1976 that Shahabuddin Qureshi is the brother of Naseem Ul Haque which a copy of the applicant’ passport records as the applicant’s father. The Tribunal is therefore satisfied that Shahabuddin Qureshi is the applicant’s uncle and, based on his Australian passport, is an Australian citizen. The Tribunal is therefore satisfied that Shahabuddin Qureshi is an acceptable individual within the meaning of the Regulations.
The Tribunal is further satisfied, on the basis of the business documents provided (at folios 54-58) that the applicant’s uncle’s regular income was sufficient to accumulate the level of funding being provided by him.
Consequently the applicant meets meet the financial capacity requirements of 5A408.
Other Requirements
The Tribunal is satisfied, on the basis of the documentation provided, that the applicant has given evidence that he successfully completed secondary schooling to year 12 (at folio 59) He thus meets/does not meet the requirements of 5A409.
On the basis of the above, 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.
Karen Synon

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.
Division 3 - Requirements for assessment level 3: clause 5A507 - clause 5A509
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.

Living costs	$3,102
Course fees	$2,750
Travel costs	$1,000
TOTAL	$6,852