Joshi (Migration)

[2018] AATA 2461

Joshi (Migration) [2018] AATA 2461 (15 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Aarohi Joshi

CASE NUMBER:  1709893

DIBP REFERENCE(S):  BCC2016/1123940

MEMBER:Justin Meyer

DATE:15 June 2018

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 572 Vocational Education and Training visa:

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

Statement made on 15 June 2018 at 3:07pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training) – Genuine student – Eligible VET student – Condition of Enrolment – Access to adequate  funds – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.40A Schedule 2 cls 573.111, 572.223

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 19 April 2017 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 15 March 2016. 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).

3. In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in a Diploma of Leadership and 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.

4. The applicant appeared before the Tribunal on 16 March 2018 and 5 April 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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 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.

8. 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.

9. On the evidence before the Tribunal, the applicant in this case is, and was at time of application, an eligible VET student who has a COE for each relevant course of study.  The applicant is currently enrolled in an eligible advanced diploma at Australian Learning, Training & Education Centre, which is an eligible education provider. To meet cl.572.223 therefore, the applicant must give evidence that they have a level of English that satisfies 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 matter; and that while the applicant holds the visa he or she has sufficient finds to meet the costs and expenses during the proposed stay.  

   Does the applicant have sufficient funds to meet costs and expenses?

10. To satisfy the requirements of being a genuine applicant for entry and stay as a student, the Tribunal must also be satisfied the applicant, while holding the visa, will have sufficient funds to meets the costs and expenses required to support both the applicant and any member of the applicant’s family unit during the stay in Australia.

11. The submission included evidence of funds held by an acceptable individual (the applicant’s sister) for the relevant period of approximately AUD30,400. This is held at ANZ Bank per a recent statement of account. I accept the applicant’s written and oral evidence on this point.

12. The Tribunal calculates the applicant is required to show access to outstanding fees of AUD7,000, living expenses of AUD18,610 and travel expenses of AUD1,000, a total of AUD26,610.

13. On the basis of the above, the applicant has given evidence in accordance with the applicable requirements, and therefore satisfies cl. 572.223(2)(c).

14. 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

15. 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 572 Vocational Education and Training visa:

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

    Justin Meyer

    
    

    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.