MATHEW (Migration)

[2017] AATA 1167

MATHEW (Migration) [2017] AATA 1167 (27 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jose Mathew

CASE NUMBER:  1510417

DIBP REFERENCE(S):  BCC2015/1518512

MEMBER:Karen Synon

DATE:27 June 2017

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(2)(a) of Schedule 2 to the Regulations; and

·cl.572.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 27 June 2017 at 3:33pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training – Genuine student – Overall circumstances and immigration history taken into account – Intends genuinely to stay in Australia temporarily

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 572.223, r 1.03, r 1.40A, r 1.42, IMMI 14/014, Schedule 5A, cl 5A407(a)

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 27 July 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 25 May 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).

3.In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of his proposed enrolment in a Certificate IV in Cookery. On review the applicant is now enrolled in a Diploma of Nursing. The visa was refused because the applicant did not provide the evidence required to demonstrate he was a genuine student as required by cl.572.223 of Schedule 2 to the Regulations and because he did not satisfy the schedule 5A requirements.

4.The applicant applied for review of the primary decision on 1 August 2015 and provided a copy of the department’s decision.

5.The applicant appeared before the Tribunal on 2 August 2016 to give evidence and present arguments.

6.The applicant was represented in relation to the review by his registered migration agent who was present throughout the hearing.

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 Diploma of Nursing as his principal course, the subclass that may be granted is Subclass 572. The issues in the present case are whether the applicant meets the Schedule 5A requirements and whether he is a ‘genuine applicant for entry and stay as a student’ having regard to the prescribed matters and whether he meets the Schedule 5A requirements. In relation to the second issue, 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.

9.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.

10.On the evidence before the Tribunal, the applicant in this case was not at the time of application an eligible VET student with a corresponding CoE and cl.572.223(1A) does not apply. 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. 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 India.  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 IMMI 14/014.  In this case, the highest assessment level to which the applicant is subject is assessment level 3.

13.The evidentiary requirements for this assessment level for Subclass 572 are set out in Part 4 of Schedule 5A and are extracted in the attachment to this decision.

English language requirements

14.On 2 August 2016 the applicant provided results of an IELTS test he sat on 22 June 2013 in which he received an Overall Band Score of 6.5.  These results have been verified by the Tribunal (at folio 68).

15.Therefore the Tribunal finds that the applicant meets 5A407(a) and consequently the English language proficiency.

Financial Capacity Requirements

16.The financial capacity the applicant must demonstrate is prescribed in 5A408.

17.Based on the Certificate of Enrolment (CoE) provided the applicant will complete his Diploma of Nursing on 15 March 2018.  At the time of this decision the applicant is therefore required to demonstrate financial capacity for 10 months.  The Tribunal has calculated the period of 10 months for the calculation of the living costs, based on the day the student visa is likely to be granted.

18.The living costs are thus calculated as $15,500 for the applicant.  As the applicant’s evidence is that he is married with one child (who both live in India) the amount of living cost for his wife are $5,425 and $3,100 for his child.  The total living costs are therefore calculated at $24,025.

19.The Confirmation of Enrolment records the total course cost is $23,500 of which $14,531 has been paid.  The Tribunal has calculated the outstanding course costs as $8,969.

20.The Tribunal considers an estimate of $1,000 for one-way travel to India to be appropriate.

21.The applicant must therefore demonstrate financial capacity in the following amounts:

Living costs Course fees	$24,025
Course fees	$8,969
Travel costs	$1,000
TOTAL	$33,994

22.The applicant has provided evidence of a bank loan of Rs 1,000,000 in the name of E.C. Mathew who, as the applicant’s father, is an acceptable individual.  At the time of decision this loan from a financial institution converts to AUD $20,459.[1]

[1] < at 27 June 2017.

23.In addition evidence has been provided of a fixed deposit held by E.C. Mathew with the Central Bank of India (numbered 1266093687) which has been held since 25 April 2006.  At the time of decision this fixed deposit held with a financial institution converts to AUD $36,429.[2]

[2] < at 27 June 2017.

24.Therefore the applicant has provided evidence, to the Tribunal’s satisfaction, of funds from an acceptable source in excess of the required $33,994.

25.Consequently the applicant meets the financial capacity requirements of 5A408.

Other Requirements

26.The Tribunal is satisfied, on the basis of the documentation provided, that the applicant has given evidence that he successfully completed secondary schooling to year 12 (at folio 61) He thus meets/does not meet the requirements of 5A409.

Conclusion in relation to Schedule 5A Requirements

27.On the basis of the above, the applicant has given evidence in accordance with the applicable Schedule 5A requirements, and therefore satisfies cl.572.223(2)(a).

Second Issue – Genuine Temporary Entrant Requirement

28.The second issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

(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)      …

29.In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

30.The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

31.The Tribunal has had regard to the following matters in considering whether it is satisfied that the applicant intends genuinely to stay in Australia temporarily.  It discussed with the applicant at the hearing a range of matters arising from Direction 53 and raised with him a number of concerns arising on the evidence before it.

32.In summary a submission provided to the Tribunal contended:

·The applicant genuinely intends to complete his studies in Australia as a genuine temporary entrant.

·He has always compiled with his visa conditions and he has no history of concern.  He is law abiding citizen.

·His previous studies in Australia are beneficial for his future career plans.

·Although he previously enrolled for a Diploma of Hospitality and Certificate IV in Cookery he lost hope and was demotivated due to his visa refusal. 

·The news of his visa refusal shattered the applicant and he felt that he needed to pursue something which gives him a professional education while at the same time giving him peace.

·His family and friends encouraged him to fight back and start afresh.

·His wife is a registered nurse in India and she had motivated him to do a nursing course because it was one of the most respected professions where he can earn a decent income while helping the community.

·Based on his research and family members suggestions, he decided to do a nursing course in Australia because he can attain skills on an international platform which will be of benefit for him in looking for employment upon his return to its home country.  Australian nursing qualifications are highly valued with more advanced technologies and practical training courses.

·This course will help him get a good nursing job in any reputable hospital in India as overseas qualifications are highly valued.

·He has been working as a catering assistant in an aged care facility and while doing so, felt a strong sense of compassion and need to help others.  He believes he can do this as a nurse.

·He believes nursing is one of the most valued, noble professions in the world.

·His previous education will help him professionally as he takes on roles as a nurse manager and moves up the hierarchy of the nursing profession where he will be required to utilise his management and technological skills.

·India is a growing economy providing endless job opportunities for skilled health professionals and the applicant strongly believes there are good chances to have a successful career as a nurse in India.

·Based on his research there are immense job opportunities in India and health care will not be affected by any recession.  Australian clinical experience will be an added advantage.

·The applicant wants to finish his course and go back to India so that he can take care of his family.  He has all as personal ties in India and intends to return at the completion of his course.  His wife and small child live there and his child needs the support of his father during his early years.

·The applicant does not have any close ties in Australia which might bind him to stay back after the completion of this course as his wife was not able to adjust to the weather in Australia and returned to India within a short period.  He does not have any relatives or business interests in Australia.

·His financial support is provided by his father, E C Mathew who has provided evidence of fixed deposits in an acceptable financial institution held for more than 12 months.  The total amount equates to AUD $59,571.32.  In addition the applicant has AUD $30,000 in an Australian bank account.

33.The following relevant oral evidence was received:

The applicant is aged 37.  He arrived in Australia in April 2007 aged 27.  He arrived on a student visa to study computer networking. This was a two year course which commenced in April 2007 and was completed in March 2009.  The highest education he received in India was a Bachelor of Information Technology which he completed in 2004.  Before coming to Australia he worked in his father’s manufacturing company for about four years from 2000.  He enrolled to do the Diploma of Computer Networking because he wanted to be better educated.  Asked why he did not return to India when he finished this he said it was not a good diploma.  The applicant has only successfully completed the following courses in Australia:

·      Diploma in Computer Networking – April 2007 – 20 March 2009; and

·      Masters of Information Technology  - March 2010 - March 2011

He commenced but did not finish an Advanced Diploma in Computer Networking and his first attempt at a Masters in Information Technology was unsuccessful.  He was granted a 485 visa in November 2013 for 18 months until 27 May 2015.  It was granted for him to get experience as a systems analyst but he could not find work in this area.  He worked in the catering industry as a kitchen assistant at Kew Gardens; an aged care facility.  At that time, after getting married, he was looking to get permanent residency.  His wife came here the previous year as a visitor but she did not like it so she returned to India.  This is why he wants to go back to India now.  He is only staying because he has no profession.  He gained his Masters in IT but was never able to get any work experience in this field.

The Tribunal expressed its concern that when the applicant applied for this visa he wanted to do a Certificate IV in Cookery but had now changed his plans to do nursing and invited him to explain these contradictory intentions.  He said he enrolled to cookery because people told him he was a good cook but he decided he didn’t want to do it as a profession.  He never commenced the cookery course although he has worked in the catering industry and food services.  Instead he has been inspired to work in a hospital.  He had a dream to be a doctor but is too old now so is considering nursing.

The Diploma of Nursing will allow him to be a division 2 nurse in India and is equivalent to a 3 year course in India.  He would seek to be registered in Kerala.  He did not check the nursing registration qualifications with the nursing authority in Kerala.  His friend says his commencing salary will be INR 25,000 a month.  He plans to work as a nurse or commence a small aged care facility.  He has talked with a friend about this.  He has no idea what he would do if he had to return to India now but could possibly work in IT.

Both his parents and a sister live in India.  His mum is a housewife in his dad runs a manufacturing business.  His sister is married and lives with her husband in Dubai.  He has no other family in Australia.  He was married on 7 January 2012.  His wife does not want to live in Australia and he has promised he will return to India after he finishes this course.  His wife lives with his parents.

He was employed in Australia at Jewish Care doing food services from 2007 to 2013.  From 2013 he has worked at Kew Gardens, again in food services. He now works at for 20 hours a week.

The applicant's original intention/plan in coming to Australia was to study away from home for the personal experience.  Asked why he is still here 9 years later he responded “don’t know”.  He returned to India last August and goes back every 12-18 months. The applicant said he has no savings in Australia and his only asset is his care.  He has no savings or assets in India.

The Tribunal noted at the hearing that it had sent the applicant copy of Direction 53 with the hearing invitation and had specifically requested him to have regard to it in any submissions that he provided and that it would be asking questions regarding the issues raised in Direction 53.  Given the opportunity to draw the Tribunal’s attention to other considerations contained in Direction 53 the applicant did not add or highlight any considerations not already discussed with him during the hearing.  Given the opportunity to do so the applicant declined to raise or comment on any other matter raised in the primary decision.  Invited to comment on any of the matters and circumstances in Direction 53, a copy of which had been sent to him the applicant declined to do so.  Invited to raise any matter in his statement to the department that he thought had not been discussed fully at the hearing the applicant said no although noted he had given a statement to the Tribunal.

34.The Tribunal notes, based on both the documents and oral evidence before it, that the applicant has 10 months remaining to complete his Diploma of Nursing and that this course will be of significant value to the applicant on his return to India.  While the Tribunal holds significant concerns about his lack of academic progress in the past he now appears to have settled on a course of study that will equip him with the skills to secure employment on his return to India which he consistently stated is his only intention.  Notably the applicant has continued to study throughout the course of the review which lends weight to his genuineness as a student.

35.In relation to the applicant’s circumstances in India, the Tribunal notes that all his family live there except his sister who lives in Dubai with her husband.  Most significantly the applicant’s wife and young child live in India and the Tribunal places great weight on the applicant’s evidence that his wife has no interest in living in Australia and does not intend to return here after a visit in 2015.  The applicant therefore has no family or relatives in Australia and intends to return to India in March next year when he completes his nursing qualification.

36.In relation to the applicant’s immigration history the Tribunal notes there is no information before it to suggest that there have been any concerns about his previous visa compliance.

Department note

37.Given the categorical evidence of the applicant that he will return to India at the conclusion of his Diploma of Nursing (that is in March 2018) and that his wife and child will be staying in India, it is the Tribunal’s view that a student visa, assuming he meets all the other remaining criteria, only be granted for the period of this course. This is because it is the primary basis on which the Tribunal finds the applicant meets cl.572.223(1)(a). Any proposal to study beyond the Diploma of Nursing due to end on 5 March 2018 should, in the Tribunal’s view, be the subject of a further student application.

Conclusion

38.On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily.  Accordingly, the applicant does meet cl.573.223(1)(a).

39.As the Tribunal has found the applicant meets the requirement of cl.572.223(2)(a) and cl.572.223(1)(a), it will remit the matter to the delegate for reconsideration.

DECISION

40.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) of Schedule 2 to the Regulations; and

·cl.572.223(1)(a) of Schedule 2 to the Regulations.

Karen Synon

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.

Division 3 - Requirements for assessment level 3 [LEGEND note: clause 5A407 - clause 5A409]

[5A407]      The applicant must give evidence that one of the following applies:

(a)      the applicant:

(i)      will not undertake an ELICOS before commencing his or her principal course; and
(ii)      achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5;

(b)      the applicant:

(i)      will undertake an ELICOS of no more than 30 weeks duration before commencing his or her principal course; and
(ii)      achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 4.5;

(c)      the applicant:

(i)      is fully funded; and
(ii)      has a level of English language proficiency that satisfies his or her proposed education provider; and
(iii)      if the applicant is to undertake an ELICOS before commencing his or her principal course — will undertake an ELICOS of no more than 30 weeks duration;

(d)      the applicant had, less than 2 years before the date of the application:

(i)      successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted:

(A)      in Australia; and
(B)      in English; or

(ii)      successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that:

(A)      is specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B)      was conducted outside Australia; and
(C)      was conducted in English; or

(iii)      as the holder of a student visa — successfully completed a substantial part of a course (other than a foundation course) that:

(A)      was conducted in English; and
(B)      was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

(iv)      successfully completed a substantial part of a course that:

(A)      is specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B)      was conducted outside Australia; and
(C)      was conducted in English; and
(D)      was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

(v)      successfully completed a foundation course that was conducted:

(A)      in Australia; and
(B)      in English; or

(vi)      successfully completed a course in foundation studies that:

(A)      is specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B)      was conducted outside Australia; and
(C)      was conducted in English;

(e)      the applicant achieved, less than 2 years before the date of the application, the required score in a test that is specified in a legislative instrument made by the Minister under clause 5A102;

[(e) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(5) - LEGEND note]

(f)      the applicant has:

(i)      a level of English language proficiency that satisfies the applicant’s proposed education provider; and
(ii)      at least 5 years of study in English undertaken in 1 or more of the following countries:

(A)      Australia;
(B)      Canada;
(C)      New Zealand;
(D)      South Africa;
(E)      the Republic of Ireland;
(F)      the United Kingdom;
(G)      the United States of America.

Clause 5A408      Financial capacity

[5A408] (1)      The applicant must give, in accordance with this clause:

[(1) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]

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

[5A408] (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;
[(ii) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(5) - LEGEND note]

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.

[5A408] (2)      In this clause:

financial support, from an applicant’s proposed education provider, means:

(a)      a scholarship that:

(i)      is awarded on the basis of merit and an open selection process; and
(ii)      is awarded to a student who is enrolled in a course leading to a Certificate IV qualification or a higher qualification; and

(iii)      is awarded to the greater of:

(A)      not more than 10% of overseas students in a course intake; and
(B)      not more than 3 overseas students in a course intake; or

(b)      a waiver of the applicant’s course fees carried out in the following circumstances:

(i)      the applicant is part of an exchange program that involves:

(A)      a formal agreement between an education provider and an education institution in a foreign country; and
(B)      the reciprocal waiver of course fees as part of that agreement;

(ii)      the applicant proposes to study full-time;
(ii)      the applicant’s proposed studies will be credited to a course undertaken by the applicant in the applicant’s home country.

funds from an acceptable source means one or more of the following:

[(a) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]
(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) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]

(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) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]

(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.

Clause 5A409      Other requirements

[5A409]      The applicant must give evidence:

(a)      that he or she has successfully completed secondary schooling to the year 11 level (or its equivalent); and
(b)      that:

(i)      he or she is enrolled in a vocational education and training course; or
(ii)      he or she is enrolled in a course that is a pre-requisite to a vocational education and training course and a vocational education and training course; or
(iii)      he or she is enrolled in a course that is a pre-requisite to a vocational education and training course and has an offer of a place in a vocational education and training course.