PAILA (Migration)

[2018] AATA 5560

PAILA (Migration) [2018] AATA 5560 (27 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bharath PAILA

CASE NUMBER:  1616624

DIBP REFERENCE(S):  BCC2016/1098153

MEMBER:Meredith Jackson

DATE:27 November 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 27 November 2018 at 8:28am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – genuine applicant for entry and stay as a student – eligible VET student – English language proficiency requirement – relevant instrument for the subclass 572 visa – IMMI14/080 – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), rr 1.03, 1.42; Schedule 2, cls 572.111, 572.223; Schedule 5A, cl 5A.407

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 and Border Protection on 19 September 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, Mr Barat Paila, applied for the visa on 14 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. The visa was refused because the applicant did not provide the evidence required to demonstrate they meet the Schedule 5A evidentiary requirements relating to English language 572.223(2); 5A407.

4. On 18 July 2018 the Tribunal invited the applicant to attend a hearing on 29 August 2018 to give evidence and present arguments relating to the issues arising in his case. On 22 August 2018 the Tribunal received a request from the applicant’s representative to cancel the hearing and proceed to a decision on the material currently before it. On 28 August the Tribunal wrote to the applicant advising him that it had received the request from his representative to cancel the hearing and proceed to make a decision on the material before it, and advising him that the Tribunal had decided to grant the request and would cancel the hearing on the basis that the applicant had consented to the Tribunal deciding the review without the applicant appearing before it (section 360(2)(b)).

5. The Tribunal has considered the evidence before it and for the following reasons has concluded that the decision not to grant the visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. In the present case, as the applicant currently is enrolled in three courses in the vocational sector: a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Management at Oceania College of Technology, the last of which will be completed in July 2020. The subclass that at the time of the delegate’s decision may therefore have been granted is Subclass 572.

7. 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 not 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 including in relation to English language ability. The requirements differ depending upon the subclass sought and the applicant’s assessment level.

   Does the applicant meet the applicable evidentiary requirements in Schedule 5A?

10. 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. 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. IMMI14/014.

11. 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.

    Background and submissions

12. On 14 March 2016 the applicant applied for the visa.

13. On 16 March 2016, the delegate requested from the applicant evidence of English language proficiency as specified in cl.5A407 of Schedule 5A of the Regulations.

14. On 4 April 2016 the applicant provided a booking receipt to the department for a Pearson Test of English (PTE) he planned to undertake on 9 April 2016.

15. On 19 April 2016 the applicant undertook the PTE test.

16. On 19 September 2016 the delegate refused to grant the visa on the basis that the applicant had at the time of the decision failed to provide acceptable evidence of English language proficiency as specified, and had not provided evidence of a previous Australian qualification at Certificate IV level or higher obtained within the previous 2 years. The delegate found the applicant did not meet the requirement of regulation 572.223(2); 5A407.

17. On 7 October 2016 the applicant applied to the Tribunal for a review of  the decision.

18. On 20 August 2018 the applicant provided the Tribunal with a PTE Test Taker Score Report for a test undertaken on 19 April 2016. The Test recorded an overall score of 40. The applicant submitted that a technical issue had prevented him accessing the test result and this was the reason he did not submit the report to the department prior to the decision being made to refuse to grant the visa.

19. The applicant argued in his submission to the Tribunal that having now provided the Tribunal with the test result he had fulfilled the requirements of an instrument, IMMI18/015. The Tribunal notes that IMMI18/015 is the relevant instrument for the subclass TU500 Student visa (see Part 3 – Application of IMMI18/015) and is not relevant to the visa application that was the subject of the delegate’s decision, which is for a different subclass. The relevant instrument for the subclass 572 visa is IMMI14/080 and the required PTE overall score is 42, which the applicant does not meet. The applicant also does not claim to meet the English language proficiency requirement on any other basis.

20. On the basis of the above, the applicant has not given evidence in accordance with the applicable Schedule 5A requirements, and therefore does not satisfy cl.572.223(2)(a).

21. For these reasons, the Tribunal finds that criteria for the grant of a Subclass 572 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

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

    Meredith Jackson

    
    

    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.