Paloba (Migration)

[2017] AATA 945

Paloba (Migration) [2017] AATA 945 (6 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Samia Hunain Paloba
Mr Muhammad Hunain Paloba

CASE NUMBER:  1610328

DIBP REFERENCE(S):  BCC2016/757483

MEMBER:Mary-Ann Cooper

DATE:6 June 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Student (Temporary) (Class TU) visas.

Statement made on 06 June 2017 at 4:11pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Genuine student – English language proficiency requirements – Alternative English language tests – PTE test undertaken in Australia

LEGISLATION

Migration Act 1958, ss 65, 359A

Migration Regulation 1994, Schedule 2, cl 572.223, Schedule 5A, cl 5A102, cl 5A407, r 1.03, r 1.40A, r 1.42

CASES

Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Visnumolakala v Minister for Immigration [2006] FMCA 1209
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492

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 17 June 2016 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 23 February 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 first named applicant (the applicant) against the criteria for a Subclass 572 visa on the basis of her enrolment in Certificates III and IV in Patisserie and a Diploma of Hospitality Management. The visas were refused because the applicant did not provide the evidence required to demonstrate she was a genuine student as required by cl.572.223 of Schedule 2 to the Regulations. Specifically, she did not meet cl.572.223(2)(a) because she had not provided evidence as required by Schedule 5A.

4. The applicants appeared before the Tribunal on 15 March 2017 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. In the present case, as the applicant currently is enrolled in Certificates III and IV in Patisserie and a Diploma of Hospitality 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.

7. 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.

8. On the evidence before the Tribunal, the applicant in this case has not at any relevant time been 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?

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’ 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.

10. In this case, the applicant holds a passport of Pakistan.  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. In this case, therefore the highest assessment level to which the applicant is subject is assessment level 3.

11. The evidentiary requirements for this assessment level for Subclass 572 are set out in Part 4 of Schedule 5A and are discussed below.

    English language proficiency – clause 5A407

12. The English language proficiency requirements for the applicant are determined by cl.5A407 of Schedule 5A. One of the ways which an applicant can satisfy these requirements is to have 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: cl.5A407(e).

13. Clause 5A102 provides

    The Minister may, by legislative ins​trument​, specify:

    (a)      an English language proficiency test as an alternative to the IELTS test; and

    (b)      the foreign country or countries in which that test may be taken by an applicant; and

    (c)      the test score that must be achieved by the applicant for this clause.

14. The relevant instrument in this regard is IMMI 14/080 and at paragraph 4 it states:

    SPECIFY that for paragraph 5A102(b) the TOEFL internet-Based Test, the
    Cambridge English: Advanced (CAE) test, Pearson Test of English Academic test and
    the Occupational English Test, may respectively be taken by an applicant in any foreign country or countries.

15. In respect of cl.5A407(e) it further specifies a required score in a Pearson Test of English Academic test (PTE test) of 42 or, if the applicant is undertaking an ELICOS of no more than 30 weeks, a score of 30.

16. The applicant had provided the results of a PTE Academic test undertaken by her in Australia on 12 February 2016 in which she achieved an overall score of 38. At the hearing, among other things, the Tribunal noted its concerns regarding the applicability of cl.5A407(e) to the applicant’s circumstances. It said it would consider the matter further but would write to the applicant if it considered she did not satisfy the requirements of this clause. On closer examination the Tribunal was not satisfied that a PTE test undertaken in Australia could satisfy cl.5A407(e) and on 17 March 2017 it wrote to the applicants under s.359A particularising the issues, attaching relevant documents and seeking their comments or response to these concerns by 31 March 2017. On 23 March 2017 the Tribunal received notice from the applicants’ agent that he no longer acted for them. On 29 March 2017 the applicant emailed the Tribunal seeking clarification. The Tribunal responded to the applicant by email on 31 March 2017 explaining and clarifying the issues. It also told the applicant it treated her query as a request for an extension of time and allowed until 18 April 2017 for her response.

17. On 15 April 2017 the applicant provided a written statement in response. She claimed that her PTE test results were valid for assessment for her visa because Australia is a foreign country for her.  She also relied on departmental policy which stated as follows:

    Alternatives to undertaking an IELTS test – Other specified tests

    Since 5 November 2011, the department has accepted test results from 3 specified English language tests for Student visa purposes taken in any country..”  

18. The Tribunal notes that, while Departmental policy in PAM3 may provide guidance, the Tribunal is not bound to follow it.[1] In particular, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations, and should not be elevated to the status of legislation. There is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where it is favourable to an applicant.[2]

    [1]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]

19. In this context, the Tribunal notes that clause 5A102 and legislative instrument IMMI 14/080 are silent on the status of alternative English language tests undertaken in Australia. The terms of 5A102 clearly indicate the alternative tests, where provided for under legislative instrument, are those undertaken in a foreign country or countries. Specifically, the words of the clause confer on the Minister a limited discretion to specify the following matters cumulatively:

    (a) an English language proficiency test as an alternative to the IELTS test; and

    (b) the foreign country or countries in which that test may be taken by an applicant; and

    (c) the test score that must be achieved by the applicant for this clause.

20. In this context, the Tribunal does consider it is open to it, on the words of the legislation, to consider and apply the results of a specified alternative to IELTS test, as referred to in subparagraph (a), in isolation from the accompanying and linked subparagraphs (b) and (c).

21. The Tribunal considers this view is supported by the text of the Explanatory Statement introducing 5A102 which provides that:

    In some countries, the IELTS test is not available. However, in such countries, a reputable English language proficiency test may be available.

22. The provision for the Gazette Notice specifying alternative tests to the IELTS test is identified as intending to avoid inconvenience to an applicant by requiring him or her to travel to a country, other than his or her home country, to sit the IELTS test.

23. Furthermore, the Explanatory Statement to IMMI 14/080 states at paragraph 3 that:

    The purpose of the Instrument is to specify which English language proficiency tests may be used as an alternative to the IELTS test, in which countries, and the scores that must be achieved by an applicant.

24. It then proceeds to specify that, other than the TOEFL test, the other specified tests, including PTE Academic test, “may be taken in any foreign country or countries” (paragraph 5).

25. Having carefully considered the applicant’s submission, and the relevant legislation and policy, the Tribunal is not satisfied that a PTE test undertaken in Australia is relevantly specified in the instrument made by the Minister under clause 5A102, that is, IMMI 14/080.

26. On this basis the Tribunal is not satisfied that the applicant meets the requirements of cl.5A407(e) of Schedule 5A.

27. The Tribunal has also considered other provisions of cl.5A407 and is not satisfied that the applicant meets any of the alternative English language proficiency requirements.

28. For all the above reasons, the Tribunal is not satisfied that the applicant meets cl.5A407 of Schedule 5A for the purposes of cl.572.223(2)(a).

29. As the requirements of Schedule 5A are cumulative, it is unnecessary for the Tribunal to proceed to consider cl.5A408 or cl.5A409.

30. 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).

    CONCLUSION

31. 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.

    Secondary applicant

32. The delegate also refused a visa to the secondary applicant, the partner of the visa applicant and who is included in her application.

33. There is no claim or any evidence before the Tribunal that the remaining applicant meets the primary criteria for the grant of the visa. In addition, to meet clause 572.322, the secondary applicant must be a member of the family unit of a person who has, relevantly, satisfied the primary criteria for a subclass 572 visa. As the applicant does not satisfy the primary criteria for a subclass 572 visa, or any other subclass, the Tribunal finds that the secondary applicant also does not satisfy clause 572.322 and, therefore, the criteria for a subclass 572 visa, or any other subclass.

    DECISION

34. The Tribunal affirms the decisions not to grant the visa applicants Student (Temporary) (Class TU) visas.

    Mary-Ann Cooper

    
    

    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.