Student Visasthe On

Migration and Refugee Division Commentary Student visasthe on Current as atby 19 September 2019 FOI 2019 WARNING This work is protected by copyright. You may download, print and reproduce this material in unaltered form only (retaining this notice) forunder your personal, non-commercial use or educational use within your organisation. ReleasedApart from any use as permitted under the Copyright Act 1968 all other rights are reserved. AAT © CommonwealthSeptember of Australia 19 Subclasses 570 – 576: Genuine Student - Relevant Assessment Levels and Schedule 5A Criteria (pre 1 July 2016) Contents Overview Genuine intention to stay temporarily • Relevant considerations when determining ‘genuine intention’ Evidentiary requirements – Schedule 5A • Assessment levels o Determining the applicant’s assessment level Visa applications made on or after 27 March 2010 Visa applications made before 27 March 2010 o Determining assessment level when applicant is no longer enrolled o Transitional arrangements for former Subclassthe 560 or 562 visa holders • English language proficiency on o IELTS test ‘taken less than 2 years before the date of the application’ o Alternative to IELTS test The applicable instrument by 2019 o Successful completion of a course ‘less than 2 FOIyears before the date of the application’ o Other ways to meet English language proficiency requirement • Financial Capacity o Funds from an acceptable source Money deposits Successful completion of part of a course Financial institutions Loans, overdrafts, linesunder of credit and credit cards Other financial support o Declaration of access to funds ReleasedAccumulation of funds o o Calculation of funds Course fees September LivingAAT costs and school costs Travel costs The relevant period • ‘Other requirements’19 of Schedule 5A o Prior schooling o Enrolment in a VET course Applicant's stated intention to comply with conditions and any other relevant matter o Departmental guidelines – applications made pre and post 5 November 2011 Access to funds Streamlined processing arrangements – alternative requirements to Schedule 5A 1 Last updated/reviewed: 4 October2018 • Defined terms o What is the relevant instrument? • The streamlined procedures o Where the applicant becomes an ‘eligible higher degree student / exchange student’ after the time of application • The CoE requirements Relevant case law Relevant legislative amendments Available decision templates ATTACHMENT A - Direction 53 ATTACHMENT B – Practical guide to determining assessment levels and Schedule 5A Criteria STEP 1: IDENTIFY RELEVANT SUBCLASS • Summary of steps • Examples the on STEP 2: IDENTIFY ASSESSMENT LEVEL • Summary of steps • Examples by 2019 STEP 3 – IDENTIFY SCHEDULE 5A REQUIREMENTS FOI • Summary of steps • Examples under Released September AAT 19 2 Last updated/reviewed: 4 October2018 Overview This commentary relates to the ‘genuine student’ criterion as it applied to Student (Class TU) visa applications made before 1 July 2016. For discussion of this issue in relation to student visa applications made on or after 1 July 2016, see MRD Legal Services Commentary Subclass 500. The Migration Regulations 1994 (the Regulations) require primary applicants for a student visa to demonstrate at the time of decision they are ‘genuine applicants for entry and stay as a student’ (cl.57X.223, or cl.576.222 for Subclass 576). There are two limbs to this criterion. First, the decision- maker must be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to factors set out in a Ministerial direction and other relevant matters. This only applies to visa applications made on or after 5 November 2011. The second limb requires the applicant to provide evidence that he or she has the minimum level of English language proficiency and financial capacity required to undertake the proposed course or courses of study, as well as any additional requirements, such as relevant educational qualifications. In most cases, unless the applicant is eligible for streamlinedthe processing on arrangements, in order to meet the second limb, applicants must provide evidence in accordance with Schedule 5A to the Regulations.1 Schedule 5A is divided according to student visa subclasses and assessment levels, determined by reference to the applicant’s nationalityby and proposed study program, and sets out evidentiary requirements for English language proficiency, financial capacity, and2019 ‘other requirements’ for each assessment level within each subclass. FOI The requirements for each of these factors vary depending on the subclass and assessment level, and in some respects the date of visa application. The various permutations are framed in precise terms and an accurate assessment in any particular case will call for a careful examination of the relevant provisions of Schedule 5A. This commentary does not attempt to cover each subclass and assessment level in detail. It is intended to provide a general overview only, with some additional discussion of issues that commonly arunderise. Members should contact MRD Legal Services for further information on specific issues. A number ofReleased Schedule 5A provisions refer to matters (such as assessment levels and courses) that are specified by the Minister by an instrument in writing (formerly Gazette Notices).2 The applicable instruments are availableAAT through the MRDSeptember Legal Services Register of Instruments : Student Visas. 1 For visa applications made before 1924 March 2012, the exceptions relate to applicants who are persons designated under r.2.07AO, which was inserted by Migration Amendment Regulations 2004 (No.6) (SR 2004, No.269), with effect from 27 August 2004, to allow certain temporary protection and temporary humanitarian stay visa holders to apply for a range of mainstream visas, including student visa Subclasses 571, 572, 573, 574 and 580. For these applicants, the English language proficiency and financial capacity requirements are not referable to Schedule 5A: see cl.571.223(2)(b), 572.223(2)(b), 573.223(2)(b) and 574.223(2)(b). From 24 March 2012, persons designated under r.2.07AO were no longer permitted to apply for student visas: Migration Legislation Amendment Regulation 2012 (No.1) (SLI 2012, No.35) rr.2 and 6, and Schedule 4 item [4]. Regulation 2.07AO affected a very limited class of persons and is not addressed in detail in this commentary. It was repealed with effect from 23 March 2013: Migration Amendment Regulation 2013 (No.1) (SLI2013, No.32). For visa applications made on or after 24 March 2012 exceptions to the Schedule 5A requirements relate to ‘eligible higher degree students’ and ‘eligible university exchange students’ (now called ‘eligible non-award students’) in the Subclasses 573, 574 and 575 streams and for visa applications made on or after 23 November 2014, exceptions relate to ‘eligible vocational education and training students’ in Subclass 572. 2 ‘Gazette Notice’ was relevantly defined in r.1.03 of the Regulations to mean a notice under r.1.17, which provides that ‘The Minister may, by notice published in the Gazette, specify matters required by individual provisions of these Regulations to be specified for the purposes of those provisions’. Both provisions have since been repealed for visa applications made on or after 3 Last updated/reviewed: 4 October2018 Where applicants are eligible for streamlined processing arrangements, assessment levels and evidentiary requirements under Schedule 5A do not apply. Instead, applicants must meet English proficiency, financial capacity and other requirements as specified in Schedule 2, which are equivalent in nature to those for Assessment Level 1 in Schedule 5A. In all cases, the second limb of the ‘genuine student’ criterion also requires decision-makers to have regard to the applicant’s stated intention to comply with visa conditions as well as any other relevant matter. In addition, for visa applications made on or after 1 January 2010, the applicant in most cases must satisfy the decision-maker of further specified matters relating to financial capacity.3 Genuine intention to stay temporarily Clauses 57x.223(1)(a), 576.222(1)(a) and 580.226(1)(a) require that the Minister be satisfied at the time of decision that the primary applicant intends genuinely to stay in Australia temporarily, having regard to: • the applicant’s circumstances; • the applicant’s immigration history; the on • if the applicant is a minor – the intentions of a parent, legal guardian or spouse; and • any other relevant matter. by These provisions were introduced on 5 November 2011 and apply to visa applications2019 made on or after that date.4 These requirements are in addition to the ‘genuineFOI student’ requirements. The Explanatory Statement to the amending regulations that introduced the ‘genuine intention to stay temporarily’ indicates that the new criterion was intended to provide a clear statutory basis for assessing an applicant’s genuineness about staying in Australia temporarily, in addition to the existing requirements relating to their genuineness as an applicant for a student visa. According to the Explanatory Statement, the decision maker is required to consider the circumstances of the applicant to ascertain whether the applicant genuinelyunder intends to come to Australia and then return home, following the completion of their studies. Relevant matters might include information that may mean the applicantReleased has little incentive to return at the end of their proposed

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