Vaidya (Migration)

[2017] AATA 3114

Vaidya (Migration) [2017] AATA 3114 (22 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sharad Kumar Vaidya

CASE NUMBER:  1615297

DIBP REFERENCE(S):  BCC2015/3159305

MEMBER:Adrian Ho

DATE:22 May 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 22 May 2017 at 5:53pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Whether the applicant has completed a substantial part of his studies in Australia – Where studies undertaken not substantial – Alternative criteria not satisfied – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.40A, 1.42, Schedule 2, cls 572.111, 572.223(1A), 572.223(2)(a), Schedule 5A

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 30 August 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 27 October 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 enrolment in a VET sector course. The visa was refused because the applicant did not provide evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant, as required by cl.572.223(2)(a) of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 3 May 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. Where used in this decision:

   a.COE refers to Confirmation of Enrolment;

   b.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   c.VET refers to Vocational Education and Training;

   d.ELICOS refers to English Language Intensive Courses for Overseas Students;

   e.A reference such as ‘5Axxx’ refers to the corresponding item or clause of Schedule 5A to the Migration Regulations;

   f.The Department or Immigration refers to the Department of Immigration and Border Protection; and

   g.IELTS refers to the International English Language Testing System.

   Subclass 580

7. At hearing, the applicant was informed that the Subclass 580 visa is for student guardians; where it is a requirement that the person will accompany a relative to or in Australia who is a student, and in order to make a valid application for a Subclass 580 visa Form 157G had to be used (Item 1222(1)(ca) of Schedule 1) and on the evidence it was not and therefore it appeared the application was not a valid application for a Subclass 580 visa.

8. The applicant confirmed that Form 157G was not used and a Subclass 580 visa was not sought, and was informed that the application appeared not to be a valid application for that subclass in any event, and the tribunal so finds.

9. For the remainder of this decision, a reference to subclasses or all subclasses of the Class TU visa does not include a reference to Subclass 580.

   Schedule 5A

10. In the present case, as the applicant proposes to study in the VET sector, the subclass that may be granted is Subclass 572.

11. 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.

    Eligible VET student

12. 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.

13. At hearing it was suggested that on the evidence before the Tribunal, the applicant was not an an eligible VET student with a corresponding COE.  Being invited to consider the issue, the applicant did not claim otherwise.

14. As suggested, the applicant does not hold enrolment or a COE for at least an advanced diploma.

15. Therefore, the applicant 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. 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?

16. 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.

17. In this case, the applicant holds a passport of India.  The assessment level specified in the relevant instrument for a holder of such a passport for Subclass 572 (the subclass for the applicant’s principal course) is assessment level 3, which is also the highest assessment level to which the applicant is subject.

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

    English language proficiency

19. As suggested, the tribunal had invited the applicant to provide evidence that is described at Item 5A407 and provided the applicant with a copy of that Item of Schedule 5A (ff.39-41).

20. As suggested, the applicant:

    a.Is not fully funded as defined;

    b.Has not undertaken an IELTS or other alternative English language test in the 2 years before applying for the visa (the IELTS results at f.44 being from a test taken in 2011);

    c.Did not complete secondary school in Australia or as otherwise specified;

    d.On his oral evidence, only completed 3 out of 24 units, and not a ‘substantial part’ of his Australian bachelor of technology in motor sports course;

    e.Has not completed a foundation course or foundation studies; and

    f.Having said he arrived in Australia in August 2012, does not have five years of study in Australia or other countries specified in the item.

21. At hearing, the applicant claimed to have completed a substantial part of an advanced diploma of mechanical engineering which he said was a two year course, which he attended for two years, did not complete, but passed more than 50% of the course.  He said he started that course in February 2014, after he stopped studying the bachelor course, and then stopped studying that course in February 2016.  He said he did not complete the course because in each semester he failed a unit.

22. He said he could and would supply a letter from the provider indicating what proportion of the course he had passed or completed.

23. He gave evidence that his substantive student visa expired in October 2015 and as suggested he made the following visa application in October 2015 and held a bridging visa from that time onwards.

24. As suggested, Item 5A407 requires that the ‘substantial part’ of the course must be completed as the holder of a student visa and the holding of a bridging visa was insufficient.  As suggested, the portion of completion of the claimed course beyond October 2015 might therefore not be reckoned.

25. More time was given to the applicant to provide the evidence he referred to regarding the advanced diploma studied from 2014 to 2016, as claimed at hearing.

26. What the applicant in fact provided after the hearing was a document indicating he was awarded a diploma in automobile engineering in August 2011 in Gujarat, India (f.84).

27. That is plainly not the course he referred to at hearing which he said he studied from 2014 to 2016.

28. Despite clearly explaining the requirements of Item 5A407 (already provided to the applicant in November 2016) to the applicant and receiving evidence that a course potentially relevant was studied from 2014 to 2016, the tribunal is left without any evidence that such a course was studied or any amount of it was completed, and is not satisfied that the course was studied.

29. The evidence of the Indian course completed is insufficient in that the course was not studied or completed less than 2 years before the visa application was made and was not leading to an AQF Certificate IV or higher.

30. Despite providing the applicant with a copy of Item 5A407 and inviting the applicant to provide the evidence mentioned therein in November 2016, explaining to the applicant at hearing the characteristics of the evidence required as described in the Item, and providing more time for the applicant to furnish evidence after hearing, for the reasons above, the evidence described at Item 5A407 has not been provided.

31. For that reasons, the applicant does not meet cl.572.223(2)(a).

32. 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

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

    Adrian Ho

    
    

    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.