Sharma (Migration)
[2016] AATA 4988
•26 September 2016
Sharma (Migration) [2016] AATA 4988 (26 September 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Sandeep Sharma
CASE NUMBER: 1513466
DIBP REFERENCE(S): CLF2015/62541
MEMBER:Gina Towney
DATE:26 September 2016
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 26 September 2016 at 11:32am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector visa – genuine student – current certificate of enrolment – English language requirement – financial capacity – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 572.223, 573.111, 573.223; Schedule 5A; r 1.03, 1.42
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 on 23 September 2015 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 29 September 2012. At the time of lodgement, Class TU contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).
In the present case, the course that the delegate assessed the applicant against is not recorded, however the applicant was assessed against criteria for a Subclass 572 visa. The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.572.223 of Schedule 2 to the Regulations.
More specifically the delegate noted that the applicant had provided evidence of English language, being a transcript from a course completed from November 2008 to February 2010, but that this did not satisfy the regulations as it was not obtained within the requisite qualification period of less than two years before the date of application (which was lodged on 29 September 2012). The applicant then appealed to the Tribunal.
The hearing invitation letter, dated 29 March 2016, advised the applicant that he must supply the following, (amongst other documents): a current Certificate of Enrolment, documents to show that he was currently enrolled in or had an offer of enrolment in a registered course; documents to show past studies in Australia; an explanation of any gaps in enrolment; documents to demonstrate sufficient funds, or access to funds, to pay course fees, living costs school costs and travel costs; evidence that the funds are from an acceptable source, and evidence of the regular income of the person providing the funds.
In support of his application the applicant provided a Letter of Offer, dated 2 May 2016, in relation to a Certificate IV in Commercial Cookery, with course dates 25 April 2016 to 23 September 2016, and a Diploma of Leadership and Management, with course dates from 3 October 2016 to 22 September 2017.
The applicant attended an initial hearing on 4 May 2016, and was accompanied by his legal representative. At hearing the Member reiterated that the applicant needed to provide evidence that he satisfied all schedule 5A criteria including: English language, financial capacity, other requirements, and enrolment. The applicant was provided with additional time to supply the relevant documents, including attending an International English Language Testing System (IELTS) test, 21 May 2016.
The Member also raised apparent gaps in the applicant’s enrolment, being a period of almost three years from April 2013 until April 2016; a period of 10 months, from October 2011 to November 2012, and a period of 14 months from February 2010 until April 2011. The Member asked for explanations of the gap, and submissions addressing the genuine temporary entrant criteria. The applicant was given additional time to provide evidence in relation to the gaps in study, genuine temporary entrant criteria, and financial capacity.
After the first hearing the migration agent applied for, and was provided with, a copy of the recording of the hearing.
Post hearing the applicant provided a bank statement for an account in his own name, dated 27 April 2016 to 29 April 2016, financial information from his cousin who resides in the United States of America, Mr Kamaljit Khurana, and a bank statement from his parents. The bank statement from his parents covered the period from 31 December 2015 until 11 May 2016. He also provided evidence of secondary schooling. The applicant also provided evidence of his having completed the IELTS, with an overall band score of 5.0.
The initial Member was unable to complete the review due to reasons not related to the appeal. In correspondence dated 7 July 2016 the applicant was advised that there would be a change in Member.
In correspondence dated 28 July 2016 the applicant was invited to attend the hearing, dated 22 September 2016. The same correspondence reiterated that the applicant must supply the documents outlined in the hearing letter above, including, (amongst other documents): a current Certificate of Enrolment; documents to demonstrate sufficient funds, or access to funds, to pay course fees, living costs school costs and travel costs; evidence that the funds are from an acceptable source, and evidence of the regular income of the person providing the funds. Prior to the hearing the applicant provided a copy of the delegate’s decision.
The applicant then appeared before the Tribunal for a second occasion on 22 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. At hearing the applicant provided an updated letter of offer, being in relation to a Bachelor of Business, with course dates from 7 November 2016 to 31 December 2018. The overall course cost was $36,000 with the final payment due on 9 July 2018.
At hearing the Tribunal asked the applicant for any further information in relation to English language proficiency. The applicant said IELTS exam results, and the Diploma of Hospitality Management, was the evidence. Asked about financial capacity, the applicant referred to the financial information provided previously, including that by his cousin who lived in the United States of America.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, as the applicant presented an offer of enrolment in a Bachelor of Business as his principal course, the subclass that may be granted is Subclass 573. 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 573, this requirement is contained in cl.573.223, which is extracted in the attachment to this decision.
The requirements of cl.573.223 differ depending upon whether or not the applicant is an ‘eligible higher degree student’ who has a confirmation of enrolment (COE) in each course of study for which they are such a student. ‘Eligible higher degree student’ is defined in cl.573.111 to mean an applicant for a Subclass 573 visa who is enrolled in a bachelor’s degree or a masters degree by coursework, and any preliminary course, with an eligible education provider or, in some cases, an educational business partner. Eligible education providers, and educational business partners, are those specified by the Minister in an instrument.
The applicant in this case is not an eligible higher degree student with a corresponding COE. As such, to meet cl.573.223, 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?
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 (being 1, 2, 3, 4, or 5) 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.
In this case, the applicant holds a passport of India. The assessment level for a holder of such a passport for Subclass 573 (the subclass for the applicant’s principal course) is assessment level 3: IMMI [12/005]. In this case, the highest assessment level to which the applicant is subject is assessment level 3.
The evidentiary requirements for this assessment level for Subclass 573 are set out in Part 5 of Schedule 5A and are extracted in the attachment to this decision.
In relation to English language requirements, the applicant has provided evidence of an IELTS exam, undertaken on 21 May 2016, where he achieved an overall ban score of 5.0. The applicant has also submitted evidence of his having completed a Diploma of Hospitality Management. Neither of these satisfies the requirements, as the IELTS exam does not meet the required overall ban score required if an applicant does not undertake an ELICOS course, being 6.0; and, the Diploma was completed more than two years prior to the date of application. The applicant has not provided evidence to satisfy this requirement.
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.573.223(2)(a).
The tribunal also notes that had the applicant maintained enrolment in a 572 level, he again would have failed to meet the requirement, as the overall ban score required in an IELTS exam, where the applicant will not undertake an ELICOS course, is at least 5.5.
The Tribunal notes that the applicant has been put on notice of the requirements, through both the departmental decision and both tribunal hearing invitation letters. The tribunal also notes that the applicant was provided with additional time after his first hearing, held on 4 May 2016, to provide evidence but has again failed to provide the required evidence. For these reasons no further time was offered to the applicant.
For these reasons, the Tribunal finds that criteria for the grant of a Subclass 573 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
The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.
Gina Towney
Member
ATTACHMENT – Extracts from the Migration Regulations 1994
573.223(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 an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree 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 the applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
(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
- Clause 5A507. English language proficiency
- 5A507 (1) 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 6.0 or the required score in an English language proficiency test that is specified in a Gazette Notice for clause 5A102;
(aa) the applicant has:
(i) achieved, in an IELTS test that was taken less than 2 years before the time of making the application, an Overall Band Score of at least 5.5 or the required score in an English language proficiency test that is specified in a Gazette Notice for clause 5A102; and
(ii) enrolled in a foundation course before commencing the applicant’s principal course;
(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 5.0 or the required score in an English language proficiency test that is specified in a Gazette Notice for clause 5A102;
(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 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.
(a) the application was made outside Australia; and
(b) the applicant:
(i) provides a certificate of enrolment in a course that has been gazetted for subregulation 1.44(2) (the gazetted course); and
(ii) will not undertake any other course before commencing the gazetted course.- (2) For subclause (1), an applicant is not required to give evidence of English language proficiency if:
- Clause 5A508. Financial capacity
- 5A508 (1) The applicant must give, in accordance with this clause:
- (a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 18 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 18 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.
- (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 by the Minister in a Gazette Notice for this paragraph;
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.
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;
(iii) 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) 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 the applicant or an individual who is providing support to the applicant;
(b) if paragraph (a) does not apply — a money deposit that the applicant, or an individual who is providing support to the applicant, has held for at least the 3 months immediately before the date of the application;
(c) a loan from a financial institution made to, and held in the name of, the applicant or an individual who is providing support to the applicant;
(d) a loan from the government of the applicant’s home country;
(e) 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.- (2) In this clause:
- Clause 5A509. Other requirements
5A509 The applicant must give evidence that:
(a) he or she has successfully completed secondary schooling to the year 12 level (or its equivalent); or
(b) he or she:
(i) has successfully completed secondary schooling to the year 11 level (or its equivalent); and
(ii) has successfully completed in Australia a foundation course; or
(c) he or she:
(i) has successfully completed secondary schooling to the year 11 level (or its equivalent); and
(ii) has a certificate of enrolment in a foundation course that is to be undertaken in Australia before commencing the applicant’s principal course; or
(d) he or she:
(i) has successfully completed secondary schooling to the year 11 level (or its equivalent); and
(ii) has 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; or
(e) he or she has successfully completed a qualification from the Australian Qualifications Framework at the Certificate IV level or higher in a course that was conducted in Australia; or
(f) he or she has a certificate of enrolment in a course that:
(i) leads to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; and
(ii) is to be undertaken in Australia before commencing the applicant’s principal course; or
(g) he or she has successfully completed a qualification from the Australian Qualifications Framework at the Certificate IV level or higher in a course that:
(i) is specified by the Minister in an instrument in writing for this subparagraph; and
(ii) was conducted outside Australia.Division 2 - Requirements for assessment level 4
o Clause 5A404. English language proficiency
5A404 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 20 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 5.0;
§(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 20 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 Gazette Notice under clause 5A102;
(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.
o Clause 5A405. Financial capacity
§ 5A405(1) The applicant must give, in accordance with this clause:
§(a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 24 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 24 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.
§ (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 by the Minister in a Gazette Notice for this paragraph;
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.
§ (2) In this clause:
acceptable individual
means one or more of the following:
§(a) the applicant;
§(b) the applicant’s spouse or de facto partner;
§(c) the applicant’s parents;
§(d) the applicant’s grandparents;
§(e) the applicant's brothers and sisters;
(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.
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;
(iii) 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) 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) 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;
(c) a loan from a financial institution that is made to, and held in the name of, an acceptable individual;
(d) a loan from the government of the applicant’s home country.
o Clause 5A406. Other requirements
§ 5A406(1) The applicant must give evidence:
§(a) that he or she has successfully completed secondary schooling to the year 12 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.
§ (2) In this clause, vocational education and training course means a vocational education and training course that:
(a) leads to the award of a qualification from the Australian Qualification Framework at the diploma level; or
(b) leads to the award of a qualification from the Australian Qualification Framework at the advanced diploma level; or
(c) is a course of at least 1 year’s duration that leads to the award of a qualification from the Australian Qualification Framework at the Certificate IV level.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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