MALOLES (Migration)

MALOLES (Migration) [2017] AATA 2698 (6 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms AINALYN MALOLES
CASE NUMBER:  1606224
DIBP REFERENCE(S):  BCC2015/2856805
MEMBER:Jan Redfern
DATE:6 December 2017
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 572 Vocational Education and Training visa:
·cl.572.223(2)(a); and
·cl.572.223(2)(c) of Schedule 2 to the Migration Regulations 1994.

Statement made on 6 December 2017 at 3:15pm
CATCHWORDS
Migration – Subclass 572 Vocational Education and Training visa – English language proficiency – refusal - insufficient evidence provided at the time of application – consideration of Schedule 5A requirements - whether funds from an acceptable source – meaning of ‘acceptable individual’ – whether defacto partner included – new evidence of loan produced - refusal remitted with direction
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 5A, r.1.03, r.1.40A, r.1.42, cl.5A.101, cl.5A.407, cl.5A.408, cl.5A.409, cl.572.223(2)(a); cl.572.223(2)(c)
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 and Border Protection on 19 April 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 30 September 2015. 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).
In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment or having been offered a place for enrolment in Certificate III and IV in Business (76ESE291 and 76E5E919), Diploma and Advanced Diploma in Business (76E5F059 and 76E5F880) and Diploma in Disability (62590735).
The visa was refused because the delegate was not satisfied that the applicant met the English language proficiency requirements of the subclass. Relevantly, the delegate found that the evidence provided by the applicant that she had completed a Diploma of Tourism did not satisfy the requirement because the qualification had been obtained in a period that was more than two years prior to the application.
The applicant appeared before the Tribunal on 23 March 2017 and 11 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant and she provided further documents in support of the review, including documentary evidence of her current enrolments and all courses completed. The Tribunal directed that the applicant provide further material about whether she satisfied the financial capacity criteria for the visa. This further material was provided on 31 March, 1 April and 21 April 2017 with further material provided, after a request for an extension of time, in July 2017.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
ISSUE FOR CONSIDERATION
In the present case, the applicant is currently enrolled in Certificate IV in Business (7F62B592) due to be completed on 9 December 2017, Diploma of Business (7F648C49) due to be completed on 8 December 2018 and Advanced Diploma of Business (7F62C712) due to be completed on 4 July 2020. At the time of the application the applicant was enrolled in similar courses but with different providers. The applicant finalised the Diploma of Disability on 30 June 2016 and her enrolment in the other courses is recorded as being cancelled.
As the Advanced Diploma of Business is the applicant’s 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 of the Regulations, which is extracted in the attachment to this decision.
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’ within the meaning of cl.572.223(1A) (an eligible VET student).
On the evidence before the Tribunal, the applicant in this case is not an eligible VET student under cl.572.223(1A). This is not in dispute. As such, to meet cl.572.223, 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. The requirements are set out in Part 4 of Schedule 5A.
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. Whether the applicant meets these requirements is to be assessed at the time of the decision. The issue for determination in this review is whether the applicant meets the requirements in Schedule 5A.
DOES THE APPLICANT MEET THE APPLICABLE EVIDENTIARY REQUIREMENTS IN SCHEDULE 5A?
What assessment level applies?
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 two 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 the Philippines. The assessment level for a holder of such a passport for Subclass 572 (the subclass for the applicant’s principal course) is assessment level 3. Accordingly, the highest assessment level to which the applicant is subject is assessment level 3. The requirements relevant to this review are those set out in clauses 5A.407 (English proficiency), 5A.408 (financial capacity) and 5A.409 (other prescribed matters).
English language proficiency requirement - clause 5A.407
Clause 5A.407(d)(iii) relevantly provides that the applicant must provide evidence that the applicant had, less than 2 years before the application as a holder of a student visa, successfully completed a substantial part of a course that was conducted in English and was leading to a qualification from the Australian Qualifications Framework (AQF) at the Certificate IV level or higher.
At the hearing, the applicant provided a letter from the Australian Academy of Management Science dated 28 April 2016 recording that the applicant had completed the requirements for the Diploma of Disability on 28 April 2016. The applicant also provided a transcript of her results for the Diploma which recorded that she had commenced the course in January 2014 and had successfully completed 16 of the course units and two field placements, with five of the units having been completed in 2014, seven of the units being completed in 2015 and the remaining four units being completed in 2016. The field placements were completed in 2015 and 2016. It is therefore apparent from these records that the applicant had successfully completed at least over 50% of the Diploma at the time of her application, which was 30 September 2015.
The evidence referred to at [16] was not before the delegate, which is no doubt why the delegate concluded the applicant had not provided evidence that she met the English language proficiency requirement. The evidence apparently provided by the applicant to the delegate, as referred to in the decision record, was the Diploma of Tourism course which was completed on 23 June 2012. This was more than 2 years before the applicant made her application for a student visa and therefore does not satisfy the evidence required under cl.5A.407(d)(iii).
However, the evidence provided at the hearing clearly establishes that the applicant had completed a substantial part of the Diploma of Disability course in the two years before the application was made on 30 September 2015. Furthermore, records from the Department of Immigration and Border Protection reveal that the applicant was the holder of a student visa from 25 October 2013 to 8 October 2015. As such, the applicant provided evidence that she had commenced the Diploma of Disability course in the period that she held a student visa, that she had successfully completed a substantial part of this course while holding the visa and that this was in a period of less than two years before her application. There is no dispute that this course was conducted in English and was leading to a qualification from AQF that was higher than Certificate level IV. The Tribunal therefore finds that the applicant satisfies cl.5A.407(d)(iii) in respect of the English language proficiency requirement in Part 4. It appears from evidence given at the hearing that there were delays in obtaining the transcript for the Diploma of Disability and this evidence was therefore not available at the time of the original decision. Ultimately it does not matter because this evidence was available at the hearing.
The Tribunal is satisfied that the applicant satisfies cl.5A.407 of Schedule 5A.
Financial capacity requirements - clause 5A.408
Because the delegate was not satisfied the applicant met the English proficiency requirement, the other requirements were not assessed. The Tribunal having found the English proficiency requirement is satisfied, must now determine whether the other requirements have been met.
There was no evidence provided by the applicant at the hearing to support her claim that she met this requirement. The applicant advised that she had provided this information to the Department but becasue this information had not been included in the Department file, the Tribunal directed that the applicant should provide any evidence in support of her claim, including any information provided to the Department, within 14 days. The applicant provided this information, which is referred to below.
To satisfy cl.5A.408, the applicant is required to give evidence of funds from an acceptable source that are sufficient to meet her course fees and living costs for the first 12 months (refer paragraph 5A.408(1)(a)). School costs are not relevant in this case as the applicant does not have any school age dependent children. The applicant must also provide evidence that she is able to meet her travel costs (refer paragraph 5A.408(1)(b)).
Clause 5A.101 contains definitions for a number of key terms used in Schedule 5A.
The ‘first 12 months’ is defined in cl.5A.101 as follows:
first 12 months,
for an applicant, means the period that:
(a) begins:
(i) if the application is made outside Australia — on the day of the applicant’s expected arrival in Australia; or
(ii) if the application is made in Australia — on the day that the student visa is expected to be granted to the applicant; and
(b) ends on the earlier of the following:
(i) the day 12 months after the beginning of the period;
(ii) the last day of the applicant’s proposed stay in Australia.
In this case the first 12 months begins on the expected date of visa grant, which is approximately 27 December 2017, being three weeks after the date of this decision. The first 12 months ends on the earlier date of either 12 months later or the last day of the applicant’s proposed stay in Australia.
The applicant’s principal course, being the Advanced Diploma of Business, has a proposed end date of 4 July 2020. As such, the earlier date as prescribed is 12 months after 27 December 2017, namely 27 December 2018.
‘Course fees’ are defined in cl.5A.101. Based on evidence provided by the applicant at the first hearing and subsequent to it, she has completed a Certificate III in Business, as part of the Advanced Diploma in Business, and was due to commence the Certificate IV in Business on 27 June 2016. The course fees for the first 12 months as at 27 December 2017 are $7,800, comprising $2,600 for the Certificate IV in Business course,[1] and $5,200 payable for the Diploma of Business course.[2] There is no evidence before the Tribunal about whether these fees or any part of the fees have been paid. It is possible that the applicant has paid some of these fees since the hearing but for the reasons set out below, this is not determinative of the outcome in this case. The Tribunal therefore finds the applicant’s course feesowing in the first 12 months are $7,200, possibly less, depending on any amount she has paid.
[1] 26/06/2017 to 9/12/2017
[2] $5,200 for 8/01/2018 to 8/12/2018
‘Living costs’ are $18,610 per year for a single person with no dependent children (cl.5A.104(1)). This is the ‘basic rate’. As the Tribunal has determined the relevant period to be 12 months, the Tribunal finds the living costs for the applicant will be $18,610.
‘Travel costs’ are defined in cl.5A.101. The applicant’s home country is the Philippines. The cost for one economy one way ticket from Sydney to the Philippines varies but is approximately $800.
The Tribunal finds, subject to the qualification referred to above, that the applicant’s total course fees owed, living costs and travel costs for the first 12 months were as follows:
Course fees $ 7,200
Living costs  $ 18,610
Travel costs  $      800
Total  $ 26,610
The applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $26,601 or, assuming she has paid all the fees for the Certificate IV in Business course, $24,010.
‘Funds from an acceptable source’ is defined in cl.5A.408(2), to mean 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 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.
As there is no evidence that the applicant has completed 75% of the course (refer paragraph 5A.408(2)(a)), she is required to show either a money deposit that an ‘acceptable individual’ has held for at least the three months immediately before the date of the application; or a loan from a financial institution made to, and held in the name of, an ‘acceptable individual’. An ‘acceptable individual’ relevantly includes the aunt or uncle of the applicant who is an Australian citizen and is usually resident in Australia (refer cl.5A.101)
The applicant provided evidence of a money deposit held with Westpac in the name of Mr Albert Warren Kanofski in the sum of $83,000 for the period 21 November 2014 to 21 November 2015. Mr Kanofski provided a statutory declaration to the effect that he is the partner of Ms Emerita Quinto. Mr Kanofski and Ms Quinto also provided a statement of financial support dated 7 September 2015 stating that they would guarantee a level of financial support to the applicant in the sum of $43,000 to allow her to complete her studies, together with a further statement dated 30 March 2017 guaranteeing financial support of $40,000 for the applicant. In support of the review, the applicant provided evidence from Mr Kanofski that he held a term deposit account with Westpac in his name which matured on 21 November 2015 and that the principal and earnings were transferred into a new term deposit, which was in the joint names of Mr Kanofski and Ms Quinto. This term deposit matured on 14 April 2017. Mr Kanofski states that as at 21 April 2017 the account held $93,100 and that Ms Quinto has full access to this account. The Tribunal was provided with term deposit account statements from Westpac confirming this evidence.
The applicant provided documentary evidence supporting the fact that Ms Quinto is her aunt, and that Ms Quinto is an Australian citizen, that Ms Quinto and Mr Kanofski both reside in Australia, specifically Toowoomba, and that they were willing to provide financial support to her.
The Tribunal accepts, on the basis of the evidence provided, that Ms Quinto is the applicant’s aunt, that she is a citizen of Australia and that she usually resides in Australia. The Tribunal also accepts that Mr Kanofski is Ms Quinto’s partner, that he usually resides in Australia and he had $83,000 in funds available three months before the applicant lodged her application, namely as at 30 June 2015, which would have been sufficient to meet the applicant’s living costs for the first 12 months. The Tribunal notes that these funds are now held jointly with Ms Quinto and that Mr Kanofski and Ms Quinto have expressed support to cover the applicant’s study, living and travel expenses. There is no evidence that Mr Kanofski is an Australian citizen or that he is a permanent Australian resident or an eligible New Zealand resident. If this had been a critical fact to establish whether the applicant satisfied the evidentiary requirements of Schedule 5A, clarification would have been sought from the applicant about this issue.
However, this was not the problem. The difficulty is that the money deposit jointly held by Mr Kanofski and Ms Quinto does not fall within the meaning of ‘funds from an acceptable source’ as set out in paragraph (aa) because this deposit was not held for at least 3 months before the application for the student visa was made by the applicant. The only funds that could fall within this definition would be the money deposit held by Mr Kanofski. The question that therefore arises is whether Mr Kanofski is an ‘acceptable individual’ as defined in cl.5A.101.
Clause 5A.101 provides as follows:
acceptable individual means one or more of the following:
(a)   the applicant;
(b)   the applicant’s spouse or d 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.

Mr Kanofski is the partner of Ms Quinto, who is her aunt, but he is not a blood relation of the applicant. The question is whether the term ‘uncle’ includes spouses or de facto partners of an aunt.
Because of concerns about whether the evidence provided would satisfy the financial requirements in cl.5A.408(1), the Tribunal wrote to the applicant raising this issue and further enquiring about whether the applicant was able to provide evidence to satisfy one of the alternative bases of funding set out in cl.5A.408(2), namely the matters set out in paragraphs (b) to (d). The applicant responded by letter dated 6 July 2017 to the effect that her aunt, Ms Quinto, was awaiting the approval of a loan to finance the applicant’s studies (which would satisfy paragraph (b)) and requested an extension of time to allow this to proceed. The applicant subsequently advised that Ms Quinto could not obtain a loan and the applicant therefore continued to rely on the evidence already provided about financial capacity.
Given the applicant cannot comply with the financial capacity requirements in cl.5A.408 unless Mr Kanofski is her ‘uncle’ within the meaning of cl.5A.101, this is the critical issue that requires consideration for the determination of whether the applicant meets the financial capacity evidentiary requirements set out in cl.5A.408. This is because the applicant has otherwise provided evidence to satisfy the Tribunal that she has complied with paragraphs 5A.408(1)(aa) and (c).[3]
[3] The applicant provided a declaration under cl.5A.408.(1)(aa) and the evidence of support from Ms Quinto and Mr Kanofski together with the funds available to them substantiates compliance with these provisions
There is no definition for ‘uncle’ or ‘aunt’ in the Act or the Regulations. The only provision referring to extended familial relationships is s.5G(2) of the Act, which provides that the members of a person’s family and relatives of a person are taken to include other persons, including a de facto partner of the person. This provision does not extend the definition of a relative to the de facto of the relative and therefore does not assist with the interpretation of ‘acceptable individual’ in cl.5A.101.
The process of statutory construction begins and ends with the statutory text but the text must be considered in its context. Objective discernment of the context may be made through extrinsic material, the legislative history and the purpose and policy of the legislation. The legal meaning of a provision will ordinarily correspond to the grammatical meaning but not always, for instance, where conflict appears to arise from the language of particular provisions. These principles have been discussed at length by the High Court[4] and, while well established, are often difficult to apply.
[4] Refer Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 and Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664, usefully summarised in Shehabi v Attorney General (NSW) [2016] NSWCATAP 137
In the absence of a statutory definition, it is appropriate to consider the ordinary English meaning of the word. According to the online Oxford Dictionary, the online Macquarie Dictionary and numerous other online dictionary definitions, an ‘uncle’ is:
The brother of one's father or mother or the husband of one's aunt.
Based on this definition, the reference in cl.5A.101 would extend to a spouse of a blood relative aunt. This would not be inconsistent with any other provision in the Act or the Regulations or with the legislative purpose of the provisions in Schedule 5A relating to an applicant’s financial capacity to meet their expenses while studying.
Clause 5A.101 provides that an ‘acceptable individual’ should either be the applicant, the applicant’s spouse or de facto partner or someone with a close familial relationship, namely parents, grandparents and siblings. An uncle and aunt are only included if they are an Australian citizen, an Australian permanent resident or an eligible Australian citizen and they are usually resident in Australia. The emphasis is on the connection of the uncle or aunt with Australia and there is no reason why these terms should be confined to blood relatives.
The Procedures Advice Manual 3 (PAM3) published by the Department provides the following commentary on the interpretation of cl.5A.101:
Note: Relatives-in-law (for example, the parents or siblings of the student’s partner, or the partner of the student’s siblings) are not on this list and therefore are not acceptable.
Example: A student’s aunt or uncle who is an Australian citizen, permanent resident, or eligible New Zealand citizen, who is usually resident in Australia is an acceptable individual for the purposes of providing financial support. The aunt or uncle can be either a blood relative of the applicant (parent’s sibling) or related by marriage to that relative. An account in the name of both the aunt and uncle would be accepted. If the relationship between the aunt and uncle has ceased through separation or divorce, finances would be acceptable only if provided by the blood relative. If the blood aunt/uncle has died and at the time of death the relationship between the aunt and uncle was ongoing, the surviving aunt/uncle may provide funds.
While the Department’s view of how the law should be interpreted is not binding authority, it is consistent with the accepted meaning of ‘uncle’.
There is no evidence that Mr Kanofski is Ms Quinto’s spouse, although based on the information provided it seems clear he is Ms Quinto’s de facto partner.
The question is whether the definition of ‘uncle’ in cl.5A.101 extends to de facto partners. In my view it does not. The Act and Regulations contain specific provisions that extend the operation of the Act to de facto partners, for instance, in s.5G, and, relevantly, cl.5A.101 itself. If the legislature intended the definition of an ‘acceptable individual’ to extend to de facto partners, this could have been included in the definition, as it did in paragraph (b).
The Tribunal is therefore not satisfied that Mr Kanofski falls within the definition of an ‘acceptable individual’ in cl.5A.101.
Given the significance of this issue to the applicant’s case and the fact that the applicant did not have the opportunity to address this issue at the first hearing, the applicant was invited to attend a hearing scheduled for 11 October 2017 to discuss this matter. At the hearing the applicant accepted that she could not meet the financial capacity requirements if relying on funds from Mr Kanofski and indicated that she would like to pursue a loan from an acceptable source for the purpose of financing her studies. The applicant requested a period of time until 4 December 2017 to do this. Given she had completed a substantial part of her course, the applicant was granted an extension of time post-hearing to secure a loan. The applicant was advised that she had until 4 December 2017 to provide any additional evidence, after which time the Tribunal would proceed to decision.
On 5 December 2017, the applicant provided evidence of a loan to her aunt, Ms Emerita Quinto, by the Commonwealth Bank in the sum of $53,000. The applicant also provided a ‘Student visa Financial Support Statement’ signed her aunt dated 28 November 2017. This statement acknowledged that Ms Quinto guaranteed to provide a level of financial support to the applicant in the sum of the loan. Ms Quinto also acknowledged that the applicant would have full access to these funds to pay for her course fees, education, maintenance and any other expenses incurred by the applicant in Australia, including the cost of travel to and from Australia.
Accordingly, based on this new evidence, I am satisfied that the applicant meets all elements of cl.5A.408 of Schedule 5A in relation to financial capacity.
Other requirements - clause 5A.409
Clause 5A.409 requires that the applicant provide evidence that she has successfully completed secondary schooling to year 11 or equivalent and is enrolled in a vocational education and training course or enrolled in a prerequisite to a vocational education and training course.
The applicant has provided evidence she completed a Certificate III in Aged Care. The Department Guidelines state that ‘under policy, a Certificate III awarded under the AQF is considered equivalent to Year 11’.
The applicant therefore has provided evidence of completing secondary schooling to year 11 level or its equivalent. As she is enrolled in an Advanced Diploma of Business the Tribunal finds she meets cl.5A.409.
Conclusion – Schedule 5A
On the basis of the above findings, the Tribunal finds that the applicant has given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and Assessment Level 3, the highest assessment level for the applicant. Accordingly, the applicant satisfies the requirements of cl.572.223(2)(a).
Access to funds – cl.572.223(2)(c)
The Tribunal must also be satisfied that, while holding the visa, the applicant will have access to the funds demonstrated or declared in accordance with the Schedule 5A requirements relating to financial capacity.
The applicant provided evidence at hearing consistent with the evidence from the applicant’s aunt that she lives with her aunt who financially supports her. The Tribunal accepts the evidence provided by the applicant from Ms Quinto that she will have access to the funds declared held by her aunt.
On the evidence before it, the Tribunal is prepared to accept that, while holding the visa, the applicant will have access to the funds demonstrated or declared in accordance with the Schedule 5A requirements relating to financial capacity. The applicant therefore meets cl.572.223(2)(c).
CONCLUSIONS
As the Tribunal has found the applicant meets the requirements of cl.572.223(2)(a) and (c) it will remit the matter to the delegate for reconsideration.
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(2)(a); and
·cl.572.223(2)(c) of Schedule 2 to the Regulations.
.
Jan Redfern

Deputy President
ATTACHMENT – Extracts from the Migration Regulations 1994
Clause 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.

[2017] AATA 2698

6 December 2017

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

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