1605718 (Migration)

[2016] AATA 4570

1605718 (Migration) [2016] AATA 4570 (18 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhongrong CHEN

CASE NUMBER:  1605718

DIBP REFERENCE(S):  BCC2016/630716

MEMBER:Gina Towney

DATE:18 October 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 571 Schools Sector visa:

·cl.571.223(2)of Schedule 2 to the Regulations; and

·cl.571.225.

Statement made on 18 October 2016 at 2:31pm

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 16 April 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 13 February 2016.  

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 applicant against the criteria for a Subclass 571 visa on the basis of enrolment in Secondary Studies (Years 11 – 12), with course dates from 1 January 2015 to 31 December 2016. The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.571.223; and because the applicant did not provide evidence of overseas student health cover, as required by 571.225 of Schedule 2 to the Regulations. 

5. More specifically the delegate found that the applicant had failed to provide evidence to satisfy schedule 5A, and had failed to provide evidence of overseas student health cover. The applicant appealed to the Tribunal, and provided a copy of the departmental decision.

6. The applicant appeared before the Tribunal on 12 October 2016 to give evidence and present arguments.  The applicant was represented in relation to the review by Ms Davies, the Registrar for his education provider.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In relation to evidence of overseas student health, the Tribunal considered cl.571.225, as copied below:

   [571.225] The applicant gives to the Minister evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.

9. Prior to the date of hearing the applicant provided evidence of overseas student health, in the form of a Policy Certificate from AHM covering the period from 5 April 2016 to 15 March 2017. As such the Tribunal finds cl. 571.225 to be satisfied.

10. In relation to Schedule 5A the Tribunal considered the following. In the present case, as the applicant currently is enrolled in Senior Secondary Studies (Years 11-12) as his principal course, the subclass that may be granted is Subclass 571. 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 571, this requirement is contained in cl.571.223, which is extracted in the attachment to this decision.

11. To meet this criterion, the applicant in this case 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?

12. 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’ is 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.

13. In this case, the applicant holds a passport of China.  The assessment level for a holder of such a passport for Subclass 571 (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.

14. The evidentiary requirements for this assessment level for Subclass 571 are set out in Part 3 of Schedule 5A and are extracted in the attachment to this decision.

15. In relation to English language requirements, the Tribunal finds the applicant satisfies cl.5A307(1), in that he has a level of English language proficiency that satisfies his proposed education provider. The Tribunal has found this criterion to have been met based on the applicant’s current enrolment.

16. In relation to financial capacity, the Tribunal finds the applicant must show $4101.66(all currency will be Australian unless otherwise stated). The Tribunal has calculated this figure using set living costs of $18,610 per annum over a period of two months (being November 2016 to December 2016) making a total of $3101.66 and travel costs of $1000. The Tribunal considered course costs, but notes the applicant has provided evidence to show his course has been paid for in full.

17. To demonstrate the required financial capacity of the applicant has provided a loan in the name of his mother, Likuifen, in the amount of 200,000 RMB, which is the equivalent to $42,086.  Based on this the Tribunal finds the applicant has satisfied cl. 5A308(2)(b). 

18. In relation to other requirements, the Tribunal finds the applicant has satisfied cl. 5A309(a), in that he is undertaking a principal course of at least 16 months duration; and cl. 5A309(b), has given evidence that he has successfully completed your 11 schooling in Australia. The latter is evidenced by communication received by the school, dated 12 October 2016, recording that the applicant has completed your 11.

19. On the basis of the above, the applicant has given evidence in accordance with the Schedule 5A requirements and therefore satisfies cl.571.223(2)(a).

20. 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

21. 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 571 Schools Sector visa:

    ·cl.571.223(2) of Schedule 2 to the Regulations, and

    ·cl.571225.

    ATTACHMENT – Extracts from the Migration Regulations 1994

    571.223(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 (2).

    (2)An applicant meets the requirements of this subclause if:

    (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 [LEGEND note: clause 5A307 - clause 5A309]

    Clause 5A307      English language proficiency

    [5A307] (1)      The applicant must give evidence that he or she has a level of English language proficiency that satisfies his or her proposed education provider.

    [5A307] (2)      If the applicant:

    (a)      is not a secondary exchange student; and

    (b)      must undertake an ELICOS (or other English language bridging course) before commencing his or her principal course in order to satisfy the English language proficiency requirements of the education provider;

    he or she must give evidence that the ELICOS (or other English language bridging course) will have a duration of no more than 50 weeks.

    Clause 5A308      Financial capacity

    [5A308] (1)      If the applicant is not a secondary exchange student, the applicant must give, in accordance with this clause, evidence that:

    (a)      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)      the applicant has funds from an acceptable source that are sufficient to meet travel costs; and

    (c)      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.

    [5A308] (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.

    [5A308] (2)      In this clause, 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;

    (aa)      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;

    (b)      a loan from a financial institution made to, and held in the name of, an acceptable individual;

    (c)      a loan from the government of the applicant’s home country;

    (d)      financial support (such as a scholarship) 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 5A309      Other requirements

    [5A309]      If the applicant is not a secondary exchange student, the applicant:

    (a)      must give evidence that:

    (i)      either:

    (A)      the principal course will be of at least 16 months duration; or

    (B)      he or she has undertaken, outside Australia, a secondary course of at least 2 years duration with an Australian curriculum and conducted in English by an Australian provider and is recognised by the relevant State or Territory education authority as meeting the requirements for successful completion of those years; and

    (ii)      he or she has successfully completed schooling to at least the Year 6 level (or its equivalent); and

    (iii)      he or she was, or will be:

    (A)      if proposing to undertake year 9 studies — less than 17 years old when commencing Year 9; and

    (B)      if proposing to undertake year 10 studies — less than 18 years old when commencing Year 10; and

    (C)      if proposing to undertake year 11 studies — less than 19 years old when commencing Year 11; and

    (D)      if proposing to undertake year 12 studies — less than 20 years old when commencing Year 12; or

    (b)      must:

    (i)      lodge his or her visa application in Australia, but not in immigration clearance; and

    (ii)      give evidence that he or she has successfully completed Year 11 secondary schooling in Australia; and

    (iii)      give evidence that he or she is enrolled in Year 12 in Australia.

    …

    acceptable individual means one or more of the following:

    (a)    the applicant;

    (b)    the applicant’s spouse or de facto partner;

    (c)    a parent of the applicant;

    (d)    a grandparent of the applicant;

    (e)    a brother or sister of the applicant;

    (f)    an uncle or aunt of the applicant who is:

    (i)    an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

    (ii)    usually resident in Australia.

    …

    secondary exchange student means an overseas secondary school student participating in a secondary school student exchange program approved by:

    (a)  the State or Territory education authority that administers the program; and

    (b)  the Education Minister.

    secondary sponsored person has the meaning given by subregulation 2.57(1).