YANG (Migration)

[2017] AATA 1931

YANG (Migration) [2017] AATA 1931 (13 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms XIAOOU YANG

CASE NUMBER:  1718710

DIBP REFERENCE(S):  BCC2017/2288134

MEMBER:Jennifer Cripps Watts

DATE:13 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

· cl.500.215 of Schedule 2 to the Regulations.

Statement made on 13 October 2017 at 2:07pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Health insurance arrangements – Evidence of health assessments

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 1, Schedule 2 cl 500.215

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 18 August 2017 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 28 June 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she did not give to the Minister evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.

4. The applicant appeared before the Tribunal on 5 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Jason Koller.

5. For the following reasons, the Tribunal has concluded that matter should be remitted for reconsideration for the grant of the visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

7. The Department refused the visa because the applicant did not satisfy cl.500.215, that is, she did not provide with her application adequate arrangements in Australia for health insurance during the period of her intended stay.

8. The applicant’s student visa that she held at the time she lodged the application for the student visa that is the subject of this review ended on 22 June 2017.  The applicant held a Certificate of Enrolment (“CoE”) up to 30 August 2017.  The visa application for the student visa that is the subject of this review was lodged on 28 June 2017.  It was refused by the Department on 18 August 2017 because the applicant did not provide evidence of health insurance.

9. The applicant told the Tribunal that, on 17 August 2017, she called the Department because she did not want her application processed until it was complete, that is, the Department had received the health information and the applicant had received her new Bupa card (from the health examinations she undertook on 25 July 2017).  The applicant says she was told that as soon as she received the new Bupa card, she could upload it and update her information online.  The Department refused the visa the next day in its written decision dated 18 August 2017.

10. The applicant lodged an application for review with this tribunal on 21 August 2017 and provided a letter from Bupa dated 18 August 2017 attaching a copy of a card in her name for Bupa cover until 31 October 2017, card number 95988481.  The information on the photocopy of the card indicates that her temporary Bupa membership commenced on 18 May 2015 and ends on 31 October 2017.  At the time of this decision, the applicant provided a colour photocopy of her Bupa card, which was placed on the Tribunal file.

11. The applicant responded to the hearing invitation by email dated 14 September 2017 indicating that she would be attending the hearing and did not require an interpreter.  The Tribunal was satisfied that the applicant, even though English is not her first language, participated fully in the proceedings.  Occasionally the Tribunal clarified a question or answer, which is usual in migration hearings. 

12. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. All primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

13. After the hearing, the applicant provided:

    a.a copy of the receipt from Sonic Health Plus, dated 25 July 2017, indicating she has paid $331.49 for a chest x-ray, medical examination and medical assessment (items VCHEST, VMA1 and VSCFEE2).  The Tribunal accepts the applicant undertook the required health assessments on 25 July 2017; and

    b.a copy of a letter from the University of Wollongong, dated 5 October 2017, confirming that she has completed the requirements for the award of the Master of Business (Management, Financial Management) and that she completed the course on 25 September 2017.  This evidence has been placed on the Tribunal file.

14. These documents have been placed on the Tribunal file.

15. The applicant has provided satisfactory evidence to the Tribunal of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.

16. Accordingly, the Tribunal is satisfied that the applicant meets cl.500.215.

    DECISION

17. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.215 of Schedule 2 to the Regulations.

    Jennifer Cripps Watts
    Member

    
    

    Attachment – IMMI 16/019 – English language instrument (extract)

    1.SPECIFY for the purposes of paragraph 500.213(3)(a) of Schedule 2 to the Regulations:

    a.the requirement to use one or more of the English language test providers listed in Schedule 1 to this Instrument; and

    b.the requirement to achieve the relevant English language test score listed in Schedule 2 to this Instrument in a test provided by the relevant English language test provider mentioned in item 1 of this Instrument; and

    c.countries, listed in Schedule 3 to this Instrument, where an applicant may take a Test of English as a Foreign Language (TOEFL) paper-based test; and

    d.the maximum time periods in which an English test must be taken:

    i.two years immediately before the date the application is made; or

    ii.two years immediately before a decision is made on the application.

    2.SPECIFY for the purposes of paragraph 500.213(3)(b) of Schedule 2 to the Regulations, classes of applicants to which subclause 500.213(1) of Schedule 2 to the Regulations does not apply, as stated in subclause 500.213(2) of Schedule 2 to the Regulations :

    a.an applicant who is a citizen of, and holds a valid passport issued by:

    i.the United Kingdom;

    ii.the United States of America;

    iii.Canada;

    iv.New Zealand; or

    v.the Republic of Ireland; or

    b.an applicant who is enrolled in a principal course of study  and that principal course of study is:

    i.registered to be delivered in a language other than English;

    ii.a registered ELICOS course, as defined in regulation 1.03 of the Regulations;

    iii.a registered school course; or

    iv.a registered post-graduate research course; or

    c.an applicants who is a:

    i.Foreign Affairs student;

    ii.Defence Student; or

    iii.secondary exchange students; or

    d.in the two years before applying for a Subclass 500 (Student) visa,  an applicant has successfully completed:

    i.the requirements for a Senior Secondary Certificate of Education, in a course that was conducted in Australia in English; or

    ii.a substantial component of a course leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher that was conducted in Australia in English while the applicant was holding a Student visa; or

    e.an applicant who has successfully completed a minimum of 5 years of study in English undertaken in one or more of the following countries:

    i.Australia;

    ii.Canada;

    iii.New Zealand;

    iv.South Africa;

    v.the Republic of Ireland;

    vi.the United Kingdom; and/or

    vii.the United States of America.

    SCHEDULE 1

English language test providers:
1.	International English Language Testing System (IELTS test)
2.	Test of English as a Foreign Language (TOEFL) Paper-Based test
3.	TOEFL internet-based test (also known as TOEFL iBT)
4.	Cambridge English: Advanced (CAE) test (also known as Certificate in Advanced English)
5.	Pearson Test of English Academic (PTE)
6.	Occupational English Test (OET)

SCHEDULE 2

English test:	Minimum test score:
1	IELTS	Overall band score 5.5; or Overall band score 5 if packaged with at least 10 weeks’ ELICOS; or Overall band score of 4.5 if packaged with at least 20 weeks’ ELICOS.
2	TOEFL Paper-Based test	527; or 500, if packaged with at least 10 weeks’ ELICOS; or 450, if packaged with at least 20 weeks’ ELICOS.
3	TOEFL iBT	46; or 35, if packaged with at least 10 weeks’ ELICOS; or 32, if packaged with at least 20 weeks’ ELICOS.
4	CAE	162; or 154, if packaged with at least 10 weeks’ ELICOS; or 147, if packaged with at least 20 weeks’ ELICOS.
2	PTE	42; or 36, if packaged with at least 10 weeks’ ELICOS; or 30, if packaged with at least 20 weeks’ ELICOS.
5	OET	‘PASS’ mark

SCHEDULE 3

Countries in which an applicant may take a TOEFL paper-based test:
Belarus	Kyrgyzstan	Tajikistan
Ecuador	Mali	Tanzania
El Salvador	Moldova	Uganda
Guatemala	Solomon Islands	Uzbekistan
Honduras	Suriname

Attachment – IMMI 17/012 – Financial capacity instrument (extract)

2.SPECIFY under subclause 500.214(4) of Schedule 2 to the Regulations and for the purposes of subclause 500.214(3) of Schedule 2 to the Regulations, that the applicant seeking to satisfy the primary criteria of a Subclass 500 (Student) visa (Primary Applicant) must give to the Minister evidence of financial capacity of the following requirements:

a)sufficient funds to meet the following costs or expenses of the Primary Applicant, as specified in item 6 of this Instrument:

i.travel expenses; and

ii.living costs and expenses as specified in item 5 of this Instrument; and

iii.course fees covering:

A.if the duration of the Primary Applicant’s stay in Australia is less than 12 months—the total course fee; or

B.if the duration of the Primary Applicant’s stay in Australia is longer than 12 months—the first annual course fee; and

b)sufficient funds to meet the following costs or expenses of each applicant seeking to satisfy the secondary criteria of a Subclass 500 (Student) visa (Secondary Applicant) making a combined application with the Primary Applicant, as specified in item 6 0of this Instrument:

i.travel expenses; and

ii.living costs and expenses as specified in item 5 of this Instrument; and

iii.all school fees for each school aged dependant as specified in item 7 of this Instrument; or

c)the Primary Applicant’s parents, spouse or de facto partner have personal annual income that is above an amount specified in item 8, and evidenced as specified in item 9 of this Instrument; or

d)the Primary Applicant’s completed AASES form, as defined in regulation 1.03 of the Regulations; or

e)for a Primary Applicant sponsored by the Department of Foreign Affairs and Trade—a letter of support from the Department of Foreign Affairs and Trade; or

f)for a Primary Applicant sponsored by the Department of Defence—a letter of support from the Department of Defence.

3.SPECIFY under subclause 500.313(4) of Schedule 2 to the Regulations and for the purposes of subclause 500.313(3) of Schedule 2 to the Regulations, that a Secondary Applicant must give to the Minister the evidence of financial capacity that corresponds with the circumstances applicable to the Secondary Applicant in the Schedule to this Instrument.

4.SPECIFY under subclause 590.216(4) of Schedule 2 to the Regulations and for the purposes of subclause 590.216(3) of Schedule 2 to the Regulations, that the applicant seeking to satisfy the primary criteria of a Subclass 590 (Primary Student Guardian Applicant) visa must give the Minister evidence of financial capacity of the following requirements:

a)sufficient funds to meet the following costs or expenses of the applicant, as specified in item 0 of this Instrument:

i.travel expenses; and

ii.living costs and expenses as specified in item 5 of this Instrument; and

b)sufficient funds to meet the following costs or expenses of the Primary Student Guardian Applicant as specified in item 6 of this Instrument:

i.travel expenses; and

ii.living costs and expenses in item 5 of this Instrument; and

iii.course fees covering:

A.if the duration of the Primary Student Guardian Applicant’s stay in Australia is less than 12 months—the total course fee; or

B.if the duration of the Primary Student Guardian Applicant’s stay in Australia is longer than 12 months—the first annual course fee; and

c)sufficient funds to meet the following costs or expenses of each member of the family unit applicant making a combined application with the Primary Student Guardian Applicant, as specified in item 6 of this Instrument:

i.travel expenses; and

ii.living costs and expenses in item 5 of this Instrument; and

iii.all school fees for each school aged dependant as specified in item 7 of this Instrument; or

d)the Primary Student Guardian Applicant’s spouse’s or de facto partner’s annual income that is above an amount specified in item 8, and evidenced as specified in item 9 of this Instrument.

5.SPECIFY for each applicant that satisfies the minimum requirements specified in item 2, item 3 and item 4 of this Instrument:

a)if the applicant’s intended stay in Australia is for a period of 12 months or longer, the annual living costs and expenses amounts for the first 12 month period is:

i.for a student—$19,830 AUD;

ii.for a student guardian—$19,830 AUD;

iii.for a spouse or de facto partner—$6,940 AUD;

iv.for a dependent child—$2,970 AUD; or

b)if the applicant’s intended stay in Australia is for a period that is less than 12 months, the living costs and expenses amount is the pro rata equivalent of the annual amounts specified in paragraph a) of this item.

6.SPECIFY the following evidence of financial capacity that satisfies the requirements specified in item 2, item 3 and item 4 of this Instrument:

a)money deposit with a financial institution;

b)loan with a financial institution;

c)government loans;

d)scholarship or financial support.

7.SPECIFY for the purposes of subclause 500.214(3) of Schedule 2 to the Regulations, for each Secondary Applicant who is a child of school-age, the evidence to be provided by the applicant of either:

a)the annual minimum amount for schooling of $8000 per annum; or

b)if the applicant’s intended stay in Australia is for a period that is less than 12 months, the amount specified for schooling is the pro rata equivalent of the annual amount specified in paragraph a) of this item; or

c)enrolment in a course at a State or Territory government school where the fees have been waived and the applicant meeting the primary criteria is enrolled in a course as a:

i.doctoral degree student; or

ii.Foreign Affairs student; or

iii.Defence student; or

iv.Commonwealth sponsored student.

8.SPECIFY the following annual income amounts that satisfies the minimum requirements specified in item 2, item 3 and item 4 of this Instrument:

a)$60,000 AUD for an individual Primary Applicant for a Subclass 500 (Student) visa; or

b)$70,000 AUD if:

i.one or more Secondary Applicant is seeking to satisfy the secondary criteria for a Subclass 500 (Student) visa; or

ii.for Subclass 590 (Student Guardian) visa applicants.

9.SPECIFY as evidence of annual income amount that satisfies the requirements specified in item 2, item 3 and item 4 of this Instrument, official Government documentation of personal income that has been issued in the 12 months immediately before the application is made.

10.In this Instrument, the pro rata equivalent of an annual amount is calculated by:

a)dividing the annual amount by 365; and

b)multiplying the resulting number by the number of days the applicant is intending to stay in Australia.

…

Schedule

Item	Circumstances applicable to the Secondary Applicant	Evidence and requirements of financial capacity
1	i.       the Secondary Applicant’s application is combined with a Primary Applicant’s application; and     ii.       the Primary Applicant does not provide a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument.	Evidence specified in item 6 of this Instrument, to meet the costs and expenses of the Primary Applicant as specified in item 2 of this Instrument.
2	i.       the Secondary Applicant’s application is combined with a Primary Applicant’s application; and     ii.       the Primary Applicant provides a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument; and    iii.       the letter of support indicates that the relevant department will meet the living expenses of each Secondary Applicant.	The letter of support.
3	i.       the Secondary Applicant’s application is combined with a Primary Applicant’s application; and     ii.       the Primary Applicant provides a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument; and    iii.       the letter of support indicates that the relevant department will not meet the living expenses of each Secondary Applicant.	Evidence specified in item 6 of this Instrument, to meet the costs and expenses of the Secondary Applicant as specified in item 2 of this Instrument.
4	i.       the Secondary Applicant’s application is not combined with a Primary Applicant’s application; and     ii.       the Primary Applicant does not provide a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument.	Sufficient funds to meet the following costs or expenses, as specified in item 6 of this Instrument:      i.     travel expenses; and     ii.     living costs for each applicant and the Student visa holder, as specified in item 5 of this Instrument; and    iii.     course fees for the Student visa holder covering: A.   if the duration of the stay in Australia is less than 12 months—the total course fee; or B.   if the duration of the stay in Australia is more than 12 months—the first annual course fee; and    iv.     all school fees for each school aged dependant of the Student visa holder, as specified in item 7 of this Instrument.
5	i.       the Secondary Applicant’s application is not combined with a Primary Applicant’s application; and     ii.       the Primary Applicant provides a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument; and    iii.       the the letter of support indicates that the relevant department will meet the living expenses of each Secondary Applicant.	The letter of support.
6	i.       the Secondary Applicant’s application is not combined with a Primary Applicant’s application; and     ii.       the Primary Applicant provides a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument; and    iii.       the letter the letter of support indicates that the relevant department will not meet the living expenses of each Secondary Applicant.	Sufficient funds to meet the following costs or expenses, as specified in item 6 of this Instrument:      i.     travel expenses: and     ii.     living costs for each applicant, as specified in item 5 of this Instrument; and    iii.     all school fees for each school aged dependant of the Student visa holder, as specified in item 7 of this Instrument.
7	i.       the Primary Applicant’s parents, spouse or de facto partner have personal income that is above an amount specified in item 8 of this Instrument.	The evidence specified in item 9 of this Instrument.