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071503437 [2008] MRTA  671  (21 July 2008)

Last Updated: 15 August 2008

071503437  [2008] MRTA 671  (21 July 2008)

DECISION RECORD

APPLICANT: Mr Aruna Prasanna Atapattu

MRT CASE NUMBER: 071503437

DIAC REFERENCE(S): CLF2007/72093

TRIBUNAL MEMBER: Kira Raif

DATE DECISION SIGNED: 21 July 2008

PLACE OF DECISION: Sydney

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

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 Citizenship 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 to the Department of Immigration and Citizenship for a Student (Temporary) (Class TU) visa on 15 March 2007. The delegate decided to refuse to grant the visa on 17 May 2007 and notified the applicant of the decision and his review rights by letter dated 17 May 2007.
3. The delegate refused the visa application on the basis that the applicant was not a genuine applicant for entry and stay as a student because he did not satisfy the requirements of cl.573.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
4. The applicant applied to the Tribunal on 18 June 2007 for review of the delegate’s decision. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(2) of the Act. The Tribunal finds that the applicant has made a valid application for review under s.347 of the Act.

RELEVANT LAW

5. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Regulations. When making the application, the applicant provided evidence that he intended to undertake a Bachelor course and he was assessed by the delegate against Subclass 573. In the course of review the applicant provided evidence of his intention to undertake a vocational study course, relevant to Subclass 572.
6. The criteria for a Subclass 572 are set out in Part 572 of Schedule 2 to the Regulations. The issue in the present case is whether the applicant meets the criterion in cl.572.223 That criterion requires that at the time of the decision, the Minister must be satisfied that the applicant is a genuine applicant for entry and stay as a student having regard to the factors set out at cl.572.223(2). Clause 572.223 states:

(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).

(2) An applicant meets the requirements of this subclause if:

(a) for an applicant who is not a person designated under regulation 2.07AO:

(i) the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 572 and the assessment level to which the applicant is subject, in relation to:

(A) the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake; and

(B) the financial capacity of the applicant to undertake each of those courses of study without contravening any condition of the visa relating to work; and

(C) other requirements under Schedule 5A; and

(ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(B) any other relevant matter; or

(b) for an applicant who is a person designated under regulation 2.07AO - the Minister is satisfied that:

(i) the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant:

(A) has access to sufficient funds of the person's own or provided by a relative; or

(B) is sponsored by an approved special student sponsor under Division 1.4D of these Regulations, with a sponsorship that is in force; and

(ii) the applicant's proficiency in English is appropriate to the proposed course of study; and

(iii) the applicant is a genuine applicant for entry and stay as a student, having regard to:

(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(B) any other relevant matter.

7. Pursuant to 572.223(2)(a) the applicant must provide evidence in accordance with the requirements in Schedule 5A to the Regulations. The relevant clause in Schedule 5A is dictated by the assessment level to which the applicant is subject.

Applicable Assessment Level

8. Regulation 1.41 of the Regulations provides that the Minister must specify by Gazette Notice an assessment level for a passport issued by a foreign country, in relation to each subclass of Student visa. Assessment level, in relation to a Subclass 570, 571, 572, 573, 574, 575 or 576 visa, means the level of assessment (being level 1, 2, 3, 4 or 5) specified under Division 1.8 for a kind of eligible passport, within the meaning of r.1.40, and for an education sector: r.1.03 of the Regulations.
9. Regulation 1.42 provides that an applicant for a student visa is subject to the assessment level specified by the Minister, at the time of application, in relation to the relevant subclass of Student visa for the eligible passport that the applicant holds at the time of decision. In certain circumstances some applicants who hold or have held a Subclass 560 or 562 visa may be considered under Assessment Level 2, despite the Gazettal of a different assessment level: r.1.42(2) and (6).
10. In the present case, the Gazette Notice in force at time of application was GN 42, 26 October 2005 It specifies that the relevant assessment level for an applicant who has applied for a Subclass 572 visa and holds an eligible passport from Sri Lanka is Assessment Level 4 Neither r.1.42(2) nor (6) are applicable in the present case.

Schedule 5A requirements for Assessment Level 4

11. Division 2 of Part 4 of Schedule 5A to the Regulations specifies the requirements for Assessment Level 4 for Subclass 572. The relevant provision in this case is cl. 5A404of Schedule 5A. At the time of application this read as follows:

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 a Gazette Notice 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 a Gazette Notice 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 a Gazette Notice 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.

Other requirements

12. In addition to meeting the requirements contained in Schedule 5A, cl.572.223(2)(a)(ii) requires that in considering whether the applicant is a genuine applicant for entry and stay as a student, the Tribunal must have regard to the stated intention of the applicant to comply with any conditions subject to which the visa is granted, and any other relevant matter.

CLAIMS AND EVIDENCE

13. The documentary material before the Tribunal is contained in Tribunal case file 071503437 and the Departmental case file CLF2007/72093. A summary of the evidence on the files, including from the Department’s Movement Records and Integrated Client Services Environment (ICSE) databases follows.
14. The applicant first travelled to Australia as a holder of a Student visa on 16 July 2005. On 25 July 2005 he was granted a further Student visa in Subclass 573, which was due to cease on 15 March 2007. That visa was granted to enable the applicant to undertake studies towards a Bachelor of Information Technology (Computer Science and Software Development) degree at Deakin University, which the applicant commenced on 22 July 2005 and was due to complete on 31 July 2008.
15. On 15 March 2007 the applicant applied for a further Student visa. He subsequently provided other documents including a copy of his Sri Lankan passport, a Confirmation of Enrolment for the Bachelor of IT at Deakin University, an academic transcript, IELTS test results for the test undertaken on 8 January 2005 and an academic transcript which indicates that the applicant was granted advanced standing on the basis of prior studies undertaken at an overseas institution.
16. On 17 May 2007 the delegate decided to refuse to grant the visa to the applicant. The delegate was not satisfied that the applicant met cl. 572.223(2)(a)(i)(A) because the IELTS test undertaken by the applicant was undertaken more than two years before the application for the visa was made. The delegate also noted that while the applicant completed a part of his course at Deakin University, some of the subjects were completed at an overseas institution and the delegate determined that only CRICOS accredited course done in Australia could be counted as a credit for a subject. The delegate noted that since 2005 the applicant had completed only two subjects out of eleven subjects and found that the applicant had not completed a substantial part of the course. The delegate concluded that the applicant was unable to meet the English language proficiency requirement of cl. 5A407.
17. The applicant sought review of the delegate’s decision on 18 June 2007. When applying for review, he provided various financial documents for the purpose of the application for the waiver of the fees. On 24 March 2008 the applicant wrote to the Tribunal. The applicant noted that the main reason his application was refused was because he had not completed 51% of the whole course when applying for the visa. He said that he was advised that he did not need to do the IELTS test by his agent and that is the reason he had not undertaken the test. He was recently informed by another agent that he can undertake an IELTS test and he intends to do so. He informed the Tribunal that he would book the earliest date for the IELTS test and would provide the confirmation receipt to the Tribunal.
18. On 27 March 2008 an officer of the Tribunal contacted the applicant to obtain evidence of his ongoing studies since the primary decision was made for the purpose of determining the applicable assessment level. The applicant informed the officer that he had not undertaken studies but that he would be undertaking an English test. On 28 March 2008 the applicant forwarded to the Tribunal his academic transcript and a letter from Deakin University dated 23 April 2007 indicating that the applicant had completed approximately 63% of the course (15 out of 24 credit points) before having his enrolment terminated for non-payment of fees in Semester 1 of 2007.
19. On 1 April 2008 the Tribunal wrote to the applicant pursuant to s. 359A of the Act inviting his comments on the information that the Tribunal considered may be a reason or part of the reason for affirming the decision under review. The Tribunal noted that there was no evidence before the Tribunal that the applicant had undertaken any studies since the first Semester of 2007 or that he was enrolled in, or had an offer of enrolment with respect to a registered course, which may be relevant to cl. 573.231 and the equivalent provisions in other Student visa subclasses. The Tribunal also noted that the applicant’s academic transcript indicated that a part of his course at Deakin University was completed at an overseas institution for which the applicant was given advanced standing. This was said to be relevant in determining whether the applicant had completed a substantial part of the course. The Tribunal also invited the applicant to provide evidence of his English language proficiency.
20. The review applicant replied to the Tribunal on 5 May 2008 by requesting more time to enrol in an English test and to provide evidence of enrolment at Deakin University, as he stated that he was still awaiting funds from his parents. He again wrote to the Tribunal on 8 May 2008 by stating that when he applied for the Student visa, his agent told him that as he had completed more than 51% of the course, that would be sufficient evidence of his English language ability. He noted that he had completed some subjects overseas but the tuition for these was in English. The applicant states that he did not hold a Student visa before coming to Australia The applicant enclosed a receipt for the payment for the IELTS test registration, issued on 8 May 2008, which indicates that he would be undertaking an IELTS test in August 2008. He had not provided any evidence of his enrolment in a registered course.
21. The Tribunal subsequently wrote to the applicant noting that earlier tests were available and requesting him to undertake an IELTS test in July and not in August 2008. The Tribunal also noted that the applicant had failed to provide evidence of his enrolment in a registered course. On 16 July 2008 the Tribunal received from the review applicant a letter of offer issued by the Infinity Institute of Melbourne for a Diploma of Hospitality Management. The course is due to commence on 27 July 2008 and is due to be completed on 27 July 2010. The letter states that the CoE will be issued upon the receipt of deposit and meeting the course entry requirements.
22. The applicant appeared before the Tribunal on 16 July 2008 to give evidence and present arguments. The oral evidence before the Tribunal is summarised below.
23. The review applicant confirmed that he came to Australia in July 2005. He said that he had started a Bachelor course at Deakin University in July 2005 and he stopped studying in early 2007. His enrolment was cancelled because he did not pay the fees. The applicant said that his parents supported him financially and he needed to get funds from them. Because he did not have the visa at the time, he could not get the paperwork from the university and he did not get the funds from his parents.
24. The review applicant said that he had not done much since March 2007. He had not done any studies because he did not have a Student visa and many of the institutions have refused him enrolment because of his visa. The Tribunal pointed out that he was able to obtain a letter of offer from the Infinity Institute. The applicant said that the outcome of his case is close and that is why he was able to get the letter of offer. The review applicant said that in the meantime he had been working on a casual basis. His parents will support him in his studies and will pay the tuition fees.
25. The review applicant said that he had not done an IELTS test since coming to Australia. He confirmed that he enrolled for the test in August. The Tribunal pointed out that the applicant was advised by the Tribunal that he should undertake an earlier test. The applicant explained that he booked the test at the closest centre and that when he was asked to do another test, he did not want to lose the money ($35) and he was not sure what the process was. The Tribunal pointed out that it needed to be satisfied that he was a genuine student. The Tribunal noted that the loss of $35 did not appear as a significant factor in preventing the applicant to register for an earlier test and that at least by the time he was contacted by the Tribunal, the applicant would have been aware of the requirement to provide the results of an IELTS test.
26. The applicant confirmed that he intended to do a Diploma course and that it was a two year course commencing in July. He said that once he hears from the Tribunal, he would be able to register in the course. The Tribunal pointed out that if the applicant was undertaking the IELTS test in August, he would not be able to ‘hear from the Tribunal’ and to start the course in July if the letter of offer was conditional upon him providing the IELTS transcripts and he was not doing the test until August. The applicant said that he explained his situation to the education provider and they were happy to issue him with the letter of offer. He said that he will start the course in July.
27. The applicant confirmed that he holds a Sri Lankan passport. He said that he did not intend to do an English course but would do one if needed. He said that he was confident of passing the IELTS test and he achieved good results before.
28. The Tribunal noted that it needed to consider whether it would await the results of the August test, given that the applicant was required to do an earlier test and he failed to enrol in an earlier test. The Tribunal also noted that the legislation required the IELTS test to be done before the application, so the Tribunal needed to consider whether the applicant was eligible to sit the test after the application was made. The applicant said that his agent told him that he did not have to do the IELTS test and that is why he was not aware of the requirements. He said that after this, he did not trust anyone else and he did not seek other advice. The applicant said that he could not obtain a letter of offer earlier because of his visa and that he is confident that he could pass the English test.

FINDINGS AND REASONS

29. The applicant has applied for a Student (Temporary) (Class TU) visa. On 16 July 2008 the review applicant provided to the Tribunal an offer of enrolment issued by the Infinity Institute of Melbourne with respect to a Diploma of Hospitality Management. The Tribunal finds that Subclass 572 is particularly relevant to this review given the type of course the applicant is seeking a visa in relation to The Tribunal finds on the evidence before it, that the applicant is not a person designated under r.2.07AO of the Regulations, and that at the time of the decision the applicant holds an eligible passport of Sri Lanka. According to Gazette Notice GN 42, 26 October 2005, the Gazette notice in force at the time of application, the applicant is subject to consideration under Assessment Level 4
30. In the present case, the delegate found that the applicant did not meet cl.573.223(2)(a)(i)(A) The delegate found that the applicant did not have the requisite English language proficiency as specified in cl.5A507 As noted above, the applicant has now provided evidence of his intention to enrol in a Diploma course and the Tribunal finds that the relevant provision is cl. 572.223. Clause 572.223(2)(a)(i)(A) relevantly requires the Tribunal to consider whether the applicant has the requisite English proficiency as required by cl. 5A404.
31. Clause 5A404 (a) require the applicant to achieve an IELTS score of at least 5.5. The applicant informed the Tribunal that he had not undertaken an IELTS test since his arrival in Australia in July 2005. He provided evidence of having registered to undertake an IELTS test in August 2008. The Tribunal informed the applicant in May 2008 that it would not await the results of the August test and that earlier tests were available in Melbourne. The applicant explained that he had not enrolled in another test because it was on the other side of Melbourne, because he did not want to lose $35 for re-registration and because he was unsure of the procedure. The Tribunal does not accept these explanations as a valid justification for the applicant’s failure to enrol in an earlier test. The applicant informed the Tribunal that he was financially supported by his parents and that he had worked casually in Australia, so that the Tribunal does not consider that the loss of $35 would cause significant hardship to the applicant. The fact that the earlier test is conducted in another part of the city also would not cause hardship to the applicant in the view of the Tribunal as the applicant had not given any reason why he could not travel to another test centre. The Tribunal does not accept that the applicant did not re-register for an earlier test because he was unfamiliar with the procedure because the applicant was expressly informed by the Tribunal of the relevant requirements, including enrolment in an earlier test. For these reasons, the Tribunal does not accept that the applicant had a legitimate reason for not enrolling in an earlier test as requested. The Tribunal also decided for these reasons not to await the results of the later test.
32. The applicant confirmed in his correspondence to the Tribunal of 24 May 2008 that his earlier IELTS test was undertaken more than two years before the application was made. There is no evidence before the Tribunal that the applicant had achieved an IELTS test score of at least 5 or 5.5 in an IELTS test that was taken less than two years before the date of the application. The Tribunal is not satisfied that the applicant meets cl. 5A404(a) and (b).
33. Clause 5A404(c) applies to an applicant who is fully funded. The term ‘fully funded’ is defined at cl. 5A103 and relates to applicants whose costs will be met by a multilateral agency, the government of a foreign country or the Commonwealth, State or Territory Government. The applicant has not provided any evidence to the Tribunal that his costs will be so met and the Tribunal is not satisfied that the applicant is fully funded. The Tribunal finds that the applicant has not provided evidence that cl. 5A404(4)(c) applies.
34. Clauses 5A404(4)(d)(i) and (ii) refer to applicants who have successfully completed the requirements for a Secondary Certificate of Education. The applicant has not given any evidence of having successfully completed the requirements for a Senior Secondary Certificate in Australia or for a gazetted course outside Australia. The Tribunal finds that the applicant has not provided evidence that cl. 5A404A(d)(i) and (ii) apply.
35. Subclause (iii) refers to the applicant who has completed a substantial part of a course that was conducted in English and that was leading to a qualification from the AQF at the Certificate IV level or higher. The applicant states that at the time when he applied for the visa, he had completed more than half of the course at Deakin University. The applicant confirmed in oral evidence that he commenced the course at that institution in July 2005 and that his enrolment in the course was cancelled in about March 2007 due to non-payment of the fees.
36. The applicant provided to the Tribunal a copy of his academic transcript from Deakin University, which indicates that the applicant had been granted advanced standing for 11 units on the basis of his studies at an overseas institution. Between the second semester of 2005 and the first semester of 2007, the applicant received credit points for two subjects. The transcript shows that he had undertaken a further seven subjects in which he had not achieved credit points.
37. The Tribunal is of the view that any study undertaken by the applicant at an overseas institution cannot contribute to the course completion for the purpose of cl. 5A404(d)(iii) because cl. 5A404(d)(iii) expressly requires the applicant to have completed that part of the course as a holder of a student visa. The Tribunal is of the view that this requirement applies to each subject undertaken by the applicant and not to the overall completion of the course. As there is no evidence that the applicant was the holder of a Student visa while completing eleven units overseas and since he has only successfully completed two credit points, the Tribunal is not satisfied that the applicant had successfully completed a substantial part of the course. The Tribunal is not satisfied that cl. 5A404(d)(iii) is met.
38. The applicant has not provided any evidence of having successfully completed a substantial part of the course that is specified by the Minister in a Gazette Notice for the purpose of paragraphs 5A404(d)(iv) and the Tribunal is not satisfied that the applicant has provided evidence that this subclause applies.
39. The applicant has not provided evidence of having successfully completed a foundation course either conducted in Australia or a course that is specified by the Minister in a Gazette Notice for the purpose of cl. 5A404(d)(vi). The Tribunal is not satisfied that the applicant meets cl. 5A404(d)(v) and (vi) and cl. 5A404(d).
40. The applicant has not given evidence that he has achieved the required score in a test that is specified in a Gazette Notice and the Tribunal is not satisfied that the applicant has provided evidence that cl 5A404(e) applies. There is no evidence before the Tribunal that the applicant has at least 5 years of study in English undertaken in one of the countries specified in cl. 5A404(f)(ii) and the Tribunal is not satisfied that the applicant meets that clause.
41. On the basis of the above, the Tribunal finds that the applicant has not given the Tribunal evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and Assessment Level 4 to which he is subject, in relation to the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake (cl.5A404). Accordingly, the applicant does not satisfy the requirements of cl.572.223(2)(a)(i)(A).
42. The Tribunal has also considered whether the applicant meets the equivalent requirements in other Student (Temporary) (Class TU) visa subclasses. On the basis of the proposed course of study and the evidence, the applicant does not satisfy the relevant criteria for any of the other Student visa subclasses.

CONCLUSIONS

43. As the Tribunal has found the applicant does not meet an essential requirement of cl.572.223, and as no evidence has been provided on which the Tribunal could be satisfied that the applicant meets the criteria for any of the other Student (Temporary) (Class TU) visa subclasses, it must affirm the decision under review.

DECISION

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

Kira Raif
Member Date: 21 July 2008