1608913 (Migration)

[2016] AATA 4485

1608913 (Migration) [2016] AATA 4485 (3 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Xu Han

CASE NUMBER:  1608913

DIBP REFERENCE(S):  BCC2016/1061988

MEMBER:Tim Connellan

DATE:3 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 03 October 2016 at 11:53am

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 3 June 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 March 2016. 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).

3. 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. The visa was refused because the applicant did not provide the evidence required to demonstrate she was a genuine student as required by cl.573.223 of Schedule 2 to the Regulations. Specifically, she failed to provide evidence she met the English language proficiency requirements.

4. The applicant appeared before the Tribunal on 8 September 2016 to give evidence and present arguments.

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case, as the applicant currently is enrolled in a Bachelor of Business as her principal course, the subclass that may be granted is Subclass 573.

8. 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.

9. 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.

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

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 China.  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.

13. 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.

    BACKGROUND

14. The applicant first came to Australia in February 2010 as the holder of a subclass 571 student visa which was current until 15 March 2013.

15. On 23 March 2013 she was granted a further 573 visa current until 15 March 2016.

16. On 11 March 2016 the applicant lodged an application for a further student visa to enable her to continue his tertiary studies.

17. On 27 April 2016, the applicant was requested to provide further evidence to enable processing of her application, including evidence she met the Schedule 5A requirements for English language proficiency as detailed in cl.5A507

18. On 3 June 2016, having not received a satisfactory response, a delegate of the Minister made the decision to refuse the application on the basis the applicant did not meet the requirements of clause 573.223.

19. On 16 June 2016 the applicant applied to the AAT for review of the decision.

    CLAIMS AND EVIDENCE

20. The Tribunal has before it the Department’s file relating to the applicant.

21. On 22 September 2016 the Tribunal received a submission which included an IELTS result of a test taken on 3 September 2016 in which the applicant achieved an Overall Band Score of 6.0. 

    FINDINGS AND REASONS

22. The applicant has applied for a Student (Temporary) (Class TU) visa. On the basis of the evidence before it, the Tribunal finds that the course in which the applicant is enrolled as the principal course is a Master of Business, which was specified for Subclass 573 by the Minister in the relevant instrument under r.1.40A of the Regulations. Accordingly, the relevant subclass for this review is Subclass 573. The Tribunal finds on the evidence before it, that the applicant is not a person designated under r.2.07AO of the Regulations, and that at the time of the decision the applicant holds an eligible passport of Pakistan.

23. In the present case, the delegate found that the applicant did not meet cl.573.223(2)(a) because the applicant did not have the requisite English language proficiency as specified in cl.5A507.

24. Subsequent to the delegate’s decision, the applicant has provided the Tribunal with further evidence. On the basis of the applicant’s submission to the Tribunal of the results of an IELTS test taken 3 September 2016 in which she achieved an overall band score of 6.0, the Tribunal is satisfied that the applicant has now provided evidence that she satisfies the English language requirements of clause 5A704.

25. The Tribunal therefore finds that the applicant has given evidence in accordance with the requirements in schedule 5A for subclass 573 and assessment level 4 to which he is subject, in relation to the necessary English language proficiency. Accordingly the applicant satisfies the requirements of clause 573.223(2)(a).

    CONCLUSIONS

26. As the Tribunal has found that the applicant meets the requirements of cl.573.223(2)(a) it is satisfied that the applicant meets the requirements of cl.573.223. Accordingly, the Tribunal will remit the matter to the delegate for reconsideration.

    DECISION

27. The Tribunal remits the application for 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.

    Tim Connellan

    
    

    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.