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0906349 [2011] MRTA  1405  (20 June 2011)

Last Updated: 30 June 2011

0906349  [2011] MRTA 1405  (20 June 2011)

DECISION RECORD

APPLICANT: Mr Ge Shi

MRT CASE NUMBER: 0906349

DIAC REFERENCE: CLF2009/107478

TRIBUNAL MEMBER: Megan Deane

DATE: 20 June 2011

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 criterion for a Subclass 573 Higher Education Sector visa:

• cl.573.223(2)(a)(i)(C) of Schedule 2 to the Regulations.
  

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 the visa on 12 March 2009. The delegate decided to refuse to grant the visa on 15 July 2009 and notified the applicant of the decision by letter dated 15 July 2009.
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 11 August 2009 for review of the delegate’s decision.
5. 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.

CLAIMS AND EVIDENCE

6. The Tribunal has before it the Department’s file relating to the applicant.
7. The application for the visa indicated that the applicant sought to undertake a Certificate IV in Business Management course at Cornell Institute from March 2009 to May 2009; a Certificate III in Hairdressing at Victory Institute from 6 July 2009 to 13 June 2010 and a Certificate IV in Hairdressing at the same institution from 5 July 2010 to 12 December 2010. He also provided a Confirmation of Enrolment for a Diploma of Accounting at Cornell Institute of Business and Technology. With the application, the applicant also provided:
   • A year 12 Certificate of Graduation from Southern Cross High School dated 13 November 2008 indicating that the applicant had completed a program of study from 11 February 2008 to 26 September 2008 consisting of HSC English (ESL), HSC Mathematics, HSC Information Processes and Technology, HSC Chinese (Background Speakers) and HSC Physics;
   • A reference letter from Sharon Luhr, Principal, Southern Cross High School dated 13 November 2008 confirming that the applicant had been a student at the school since 11 February 2008;
   • A certificate from Cornell Institute of Business & Technology certifying that the applicant had fulfilled the requirements of Certificate IV in Business Management BSB41101 on 6 May 2009. The Certificate confirmed that the qualification was recognised within the Australian Qualifications Framework and was issued under authority of the NSW Vocational Educational and Training Act 2005;
   • A certificate of attendance for the course indicating that the applicant’s average attendance was 64% and a transcript of the subjects studied.

Information provided to the Tribunal

8. To the Tribunal, the applicant’s representative provided the same documents as were supplied to the Department.

Further enquiries made by the Tribunal

9. The PRISMS database indicates that the applicant is now studying a Bachelor of Business course which he commenced on 19 July 2010 and which is due to be completed on 31 July 2013. The PRISMS database confirms that the applicant finished Senior Secondary (Years 11 and 12) on 19 December 2008 and that he finished the Certificate IV in Business Management on 8 May 2009.
10. Under section 360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear before the Tribunal to give evidence in relation to the decision under review.

RELEVANT LAW

11. 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. For applicants who apply as a student, the subclass that can be granted in any particular case depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course, and the subclass for which that type of course was specified by the Minister under r.1.40A. Under r.1.40A, the Minister must specify by instrument the types of courses for each subclass of student visa, except Subclass 576 (AusAID or Defence Sector).
12. In the present case, at the time that the application was lodged, the applicant indicated that he intended to study a Certificate IV in Business Management course at Cornell Institute from March 2009 to May 2009; a Certificate III in Hairdressing at Victory Institute from 6 July 2009 to 13 June 2010 and a Certificate IV in Hairdressing at the same institution from 5 July 2010 to 12 December 2010. Accordingly, the delegate assessed the applicant against the criteria for a subclass 572 visa. However, the applicant is now enrolled in a Bachelor course. As the criterion which specifies which subclass of visa applies is a criterion to be met at the time of decision (see cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2), the relevant subclass in this case is now Subclass 573 Higher Education Sector.
13. The criteria for the grant of a Subclass 573 visa are set out in Part 573 of Schedule 2 to the Regulations. The issue in the present case is whether the applicant meets the criterion in cl.573.223(2)(a)(i)(C) which states:

573.223 (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 573 and the assessment level to which the applicant is subject, in relation to:

...

(C) other requirements under Schedule 5A; and

14. Pursuant to 573.223(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

15. ‘Assessment level’, in relation to a Subclass 573 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. Division 1.8 of the Regulations, which consists of r.1.40 to r.1.44, contains special provisions for student visas. Regulation 1.41 provides that the Minister must specify by Gazette Notice an assessment level for a kind of eligible passport, in relation to each subclass of student visa to which an applicant for a student visa (other than an applicant designated under r.2.07A) will be subject.
16. Regulation 1.42(1) 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.
17. In certain circumstances an applicant who holds or has held a Subclass 560 or 562 visa is subject to Assessment Level 2, despite the assessment level that would otherwise apply under r.1.42(1): r.1.42(2) and (6).
18. In the present case, the Gazette Notice for r.1.41 that was in force at time of application was IMMI 08/051, 1 September 2008. In relation to Subclass 573 and a passport of People's Republic of China, it specifies Assessment Level 4. Thus, the relevant assessment level for an applicant who seeks to satisfy the primary criteria for a Subclass 573 visa and holds an eligible passport of People's Republic of China is Assessment Level 4.

Schedule 5A requirements for Assessment Level 4

19. Division 2 of Part 5 of Schedule 5A to the Regulations specifies the requirements for Assessment Level 4 for Subclass 573. Relevantly, it provides:

Clause 5A506. Other requirements
5A506 The applicant must give evidence that:
...
(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
...

FINDINGS AND REASONS

20. The applicant has applied for a Student (Temporary) (Class TU) visa. On the basis of the evidence before it, the Tribunal finds that the course in which the applicant is enrolled as the principal course is a Bachelor course, which was specified for Subclass 573 by the Minister in the relevant instrument under r.1.40A of the Regulations. Accordingly, the relevant subclass for this review is Subclass 573. The Tribunal finds that the applicant is not a person designated under r.2.07AO of the Regulations. The Tribunal also finds that the provisions of r.1.42(2) and (6) are inapplicable and that at the time of the decision the applicant holds an eligible passport of the People’s Republic of China.
21. According to IMMI 08/051, 1 September 2008, the Gazette notice in force at the time of application, the applicant is subject to consideration under Assessment Level 4.
22. In the present case, the delegate found that the applicant did not meet cl.572.223(2)(a)(i) because the applicant did not meet the ‘other requirements’ under Schedule 5A (cl.5A406).

The Schedule 5A requirements

23. The Tribunal agrees with the delegate that the certificate and reference from Southern Cross High School do not constitute evidence that the applicant successfully completed year 12 studies in Australia. However, since the time of the delegate’s decision, the applicant has commenced studying a Bachelors course and the relevant provision is now item 5A506, which can be met on the basis of having successfully completed a qualification from the Australian Qualifications Framework at the Certificate IV level or higher in a course that was conducted in Australia.
24. The applicant has provided a copy of a certificate which demonstrates that he fulfilled the requirements for the Certificate IV in Business Management BSB41101 on 6 May 2009. This is confirmed in the PRISMS records. The certificate confirms that the qualification is recognised within the Australian Qualifications Framework and is issued under authority of the NSW Vocational Education and Training Act 2005.
25. On the basis of the above, the Tribunal finds that the applicant has given evidence, in accordance with the requirements in Schedule 5A for Subclass 573 and Assessment Level 4 to which he is subject, in relation to the prescribed ‘other requirements’. Accordingly, the applicant satisfies the requirements of cl.573.223(2)(a)(i)(C).

CONCLUSION

26. As the Tribunal has found the applicant meets the requirement of cl.573.223(2)(a)(i)(C), it will remit the matter to the delegate for reconsideration.

DECISION

27. The Tribunal remits the application for Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:
    • cl.573.223(2)(a)(i)(C) of Schedule 2 to the Regulations.
      

Megan Deane
Member