Nand (Migration)

[2017] AATA 2052

Nand (Migration) [2017] AATA 2052 (20 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Tushiv Mayank Nand

CASE NUMBER:  1613008

DIBP REFERENCE(S):  CLF2016/35228

MEMBER:Wendy Banfield

DATE:20 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.

Statement made on 20 October 2017 at 10:17am

CATCHWORDS

Migration – Student (Temporary)(Class TU) – Subclass 571 Schools Sector visa – Completion of schooling to at least Year 6

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r.103, r 1.42, r1.40A, cl 5A309, cl 571.223

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 29 July 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 14 June 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 571 visa on the basis of enrolment in primary school. The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.571.223 of Schedule 2 to the Regulations.

   Background

4. The applicant is a citizen of Fiji and is currently 7 years old. He is enrolled in a public primary school in New South Wales and is studying Year 2. The applicant has a sister in Year 3 who was granted a Subclass 571 visa that is valid until March 2019. At the time of application the student’s father was working outside Australia but has now applied for an Australian visa based on his employment in regional Australia.

5. The applicant appeared before the Tribunal on 19 October 2017 to give evidence and present arguments. The Tribunal received oral evidence from the visa applicant’s father Kaliyan Nand. 

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case, as the applicant currently is enrolled in Year 2 primary school level as his principal course, the subclass that may be granted is Subclass 571. 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 571, this requirement is contained in cl.571.223, which is extracted in the attachment to this decision.

8. To meet this criterion, the applicant in this case 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?

9. 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’ is 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.

10. In this case, the applicant holds a passport of Fiji.  The assessment level for a holder of such a passport for Subclass 571 (the subclass for the applicant’s principal course) is assessment level 3.  In this case, the highest assessment level to which the applicant is subject is assessment level 3.

11. The evidentiary requirements for this assessment level for Subclass 571 are set out in Part 3 of Schedule 5A and are extracted in the attachment to this decision.

12. In this case it is a requirement pursuant to cl.5A309(a)(ii) that the applicant has successfully completed schooling to at least the Year 6 level (or its equivalent). As the applicant is aged 7 and in Grade 2 level in primary school, he does not meet this requirement. The applicant’s father Kailyan Nand explained that when he applied for his son’s visa he had researched the requirements online and had spoken to Departmental officers. He believed the applicant was eligible for a Subclass 571 visa based on his circumstances. Mr Nand said his daughter who is in Year 3 was granted the same visa, however, the applicant’s sister was born in Canada which may account for the difference between the siblings.

13. Mr Nand submitted the Department website information and his discussion with officers led him to believe the applicant would also be eligible for the Subclass 571 visa and he had been unaware of the requirement for his son to have completed Year 7 based on assessment level 3 that applies in this case. Following discussion with the Tribunal, Mr Nand conceded the applicant does not meet the criteria in this case.

14. On the basis of the above, the applicant has not given evidence in accordance with the Schedule 5A requirements and therefore does not satisfy cl.571.223(2)(a).

15. For these reasons, the Tribunal finds that criteria for the grant of a Subclass 571 visa are not met.  As there is no evidence the applicant is eligible to be granted a student visa of another subclass, the decision under review must be affirmed.

    DECISION

16. The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.

    Wendy Banfield
    Member

    
    

    ATTACHMENT – Extracts from the Migration Regulations 1994

    571.223(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 (2).

    (2)An applicant meets the requirements of this subclause if:

    (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.

    5A309 Other requirements

    If the applicant is not a secondary exchange student, the applicant:

    (a) must give evidence that:

    (i) either:

    (A)  the principal course will be of at least

    16 months duration; or

    (B)  he or she has undertaken, outside Australia, a

    secondary course of at least 2 years duration

    with an Australian curriculum and conducted in

    English by an Australian provider and is

    recognised by the relevant State or Territory

    education authority as meeting the requirements

    for successful completion of those years; and

    (ii)  he or she has successfully completed schooling to at

    least the Year 6 level (or its equivalent); and

    (iii) he or she was, or will be:

    (A)  if proposing to undertake year 9 studies—less

    than 17 years old when commencing Year 9;

    and

    (B) if proposing to undertake year 10 studies—less

    than 18 years old when commencing Year 10;

    and

    (C) if proposing to undertake year 11 studies—less

    than 19 years old when commencing Year 11;

    and

    (D) if proposing to undertake year 12 studies—less

    than 20 years old when commencing Year 12;

    or

    (b)  must:

    (i)   lodge his or her visa application in Australia, but not in

    immigration clearance; and

    (ii)  give evidence that he or she has successfully completed

    Year 11 secondary schooling in Australia; and

    (iii)  give evidence that he or she is enrolled in Year 12 in Australia.