1610542 (Migration)

[2016] AATA 4456

1610542 (Migration) [2016] AATA 4456 (22 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Waqas

CASE NUMBER:  1610542

DIBP REFERENCE(S):  BCC2015/2614364

MEMBER:Miriam Holmes

DATE:22 September 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(1A)(a)(i) of Schedule 2 to the Regulations.

Statement made on 22 September 2016 at 12:52pm

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 25 November 2015 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 8 September 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).

3. In the present case, the delegate assessed the applicant against the criteria for a Subclass 573 visa on the basis of enrolment in 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, in particular the applicant did not provide evidence to meet the English language proficiency requirements.

4. On 14 April 2016 the Tribunal (differently constituted) held a hearing in relation to this review application. The Tribunal made an oral decision on 14 April 2016 affirming the decision to refuse the student visa application.  The member was not satisfied that the applicant met the financial capacity evidentiary requirements in Schedule 5A of the Regulations. On or about 11 May 2016 the applicant commenced judicial review proceedings in the Federal Circuit Court.  On 7 July 2016 the Federal Circuit Court made orders by consent to quash the decision of the Tribunal dated 14 April 2016 and directed that the Tribunal reconsider and re-determine  the review application according to law. 

5. The applicant appeared before the Tribunal on 22 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

6. The applicant was represented in relation to the review by his 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 is enrolled in a Bachelor of Professional Accounting at Holmes Institute from 29 August 2016 to 31 July 2018 as his principal course, the subclass that may be granted is Subclass 573. At the time of application the applicant was enrolled in Bachelor of Business (Accounting) at Cambridge International College. 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 master’s 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. After the applicant gave evidence regarding the date of the visa application, his enrolment details as at the time of application and currently, the Tribunal discussed with the applicant and representative whether the applicant’s visa application should correctly be considered under Schedule 5A and cl.573.223(2) or cl.573.223(1A). The Tribunal noted that the delegate and previous Tribunal proceeded to consider the visa application under the requirements in cl.573.223(2) and Schedule 5A, however the Tribunal considered that the more appropriate provision was cl.573.223(1A). After a short break for the representative to confer with the applicant, the representative indicated that the applicant preferred the Tribunal to consider the visa application under the requirements in cl.573.223(1A).

11. On the evidence before the Tribunal, the Tribunal is satisfied that the applicant in this case is, and was at the time of application an eligible higher degree student with a corresponding COE and cl.573.223(1A) does apply.  The applicant is currently enrolled in a Bachelor of Professional Accounting, an eligible degree, at Holmes Institute, which is an eligible provider: IMMI 15/120. At the time of application the applicant was an eligible higher degree student with a corresponding COE as he was enrolled in a Bachelor of Business (Accounting), an eligible degree, at Cambridge International College, which is also an eligible provider: IMMI 15/120.

12. Therefore to meet cl.573.223, the applicant must give evidence that they have a level of English that satisfied the education provider, and the educational qualifications required by the provider. 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 matters; and that while the applicant holds the visa he or she has sufficient funds to meet the costs and expenses during the proposed stay in Australia.

    Does the applicant meet the applicable evidentiary requirements?

13. The Tribunal has confined its consideration to the English language competency requirement as this was the only matter considered by the delegate.

14. The Tribunal finds based on the oral evidence and the COE documents and IELTS results and other documents as follows:

    ·    On 15 January 2011 the applicant undertook an IELTS test and he achieved an overall band score of 5.5.

    ·    On 27 May 2012 the applicant was awarded a Certificate IV in Spoken and Written English from Cambridge International College

    ·    The COE issued in respect of the course by Cambridge International College for the Bachelor of Business (Accounting) as at 14 May 2015 listed the relevant English Test Type was IELTS and English test score was 5.5.  

    ·    On 9 January 2016 the applicant undertook an IELTS test and he achieved an overall band score of 6.

    ·    The COE in respect of the course by Holmes Institute for the Bachelor of Professional Accounting as at 31 August 2016 listed the relevant English language test as IELTS with an English Test score of 6.

15. The applicant gave evidence that Cambridge International College required that he complete an ELICOS course to commence the Bachelor of Business when he first enrolled in 2012 and he completed the course in May 2012.

16. The Tribunal is satisfied based on the findings above that the applicant’s level of English language proficiency satisfied the applicant’s eligible education provider, in respect of the Bachelor of Business (Accounting) and the Bachelor of Professional Accounting. 

17. Given these findings the applicant meets the requirements in cl.573.223(1A)(a)(i).

18. On the basis of the above, the applicant meets the evidentiary requirements in cl.573.223(1A)(a)(i).

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 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(1A)(a)(i) of Schedule 2 to the Regulations.

    Miriam Holmes

    
    

    Senior 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.