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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
- 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).
- 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.
- 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).
- The
applicant applied to the Tribunal on 11 August 2009 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.
CLAIMS AND EVIDENCE
- The
Tribunal has before it the Department’s file relating to the applicant.
- 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
- To
the Tribunal, the applicant’s representative provided the same documents
as were supplied to the Department.
Further enquiries made by the Tribunal
- 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.
- 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
- 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).
- 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.
- 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
- 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
- ‘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.
- 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.
- 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).
- 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
- 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
- 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.
- 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.
- 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
- 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.
- 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.
- 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
- 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
- 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
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