© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2018] AATA 2483
appellant. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first-named applicant meets cl.572.223(1A)(a), (b) and (c) of Schedule...
The AAT reviewed a delegate's refusal of Subclass 572 student visas where the delegate said the applicant had not proved English proficiency. The Tribunal accepted the applicant's IELTS (overall 6.0, within two years), accepted her secondary schooling/equivalence, calculated required funds pro rata given the short remaining course period, accepted a fixed bank deposit in her grandfather's name plus an affidavit of support as an acceptable source and genuine access to funds, and concluded she met the regulatory requirements. The Tribunal remitted the decision to the delegate with a direction that the first-named applicant meets cl.572.223(1A)(a),(b) and (c).
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,933 words · generated 07/07/2026
This is an AAT Migration & Refugee Division review (Member: Stephen Conwell) of a delegate's refusal of Student (Temporary) (Class TU) visas (Subclass 572) for the first-named applicant, Mrs Neha Abrol, and a secondary applicant (Mr Parvinder Singh). The applicants lodged visa applications on 20 April 2016; a delegate refused on 23 November 2016. The stated ground for refusal was that the first-named applicant had not provided documentation proving her English language proficiency as required by cl.572.223(1A) of Schedule 2 to the Migration Regulations 1994 (see Application for Review, para 3). The AAT listed a hearing but determined the matter could be decided on the papers, then examined the material and made positive findings that the applicant met the key regulatory criteria. The Tribunal remitted the matter to the delegate for reconsideration and directed that the first-named applicant meets cl.572.223(1A)(a), (b) and (c) (Decision section). The decision was delivered on 5 June 2018.
1 cited instrument linked from this judgment.
The Tribunal's assessment concentrated on three regulatory strands: English language proficiency, educational qualifications (secondary schooling equivalence), and financial capacity (including genuine access to funds). The Tribunal found, on the material before it, that the applicant had produced an IELTS test report showing an overall band score of 6.0 dated 11 November 2017 and accepted that this satisfied the Schedule 5A requirement for Assessment Level 3 (English language proficiency section). It accepted the applicant's Matriculation and Senior Secondary School certificates and applied Departmental guidance treating Certificate III as equivalent to Year 11 to satisfy the educational requirement (cl.5A409). For financial capacity, the Tribunal calculated a pro rata 'first 12 months' figure given the applicant's short remaining course duration, accepted a 2,500,000 INR fixed deposit at Punjab National Bank held in the name of the applicant's grandfather (Ashok Kumar) together with an affidavit of support, and found both sufficiency of funds and genuine access for the applicant (Financial capacity and Access to funds sections). Those findings led directly to remittal.
The Tribunal's reasoning followed the statutory and regulatory text. Clause 572.223(1A) applies where an applicant is an 'eligible vocational education and training student' who has a COE for their courses. It requires evidence that the applicant has an English level that satisfies the education provider, the educational qualifications required by the provider, and that the Minister is satisfied the applicant will have sufficient funds during the proposed stay. The Tribunal first established that the applicant was an eligible VET student with a COE at an eligible provider (VICAT) (CONSIDERATION section). The applicable assessment level for the applicant (an Indian passport holder enrolled in Subclass 572) was Assessment Level 3 (r.1.42 and IMMI 14/014).
On English proficiency the Tribunal relied on the applicant's IELTS result dated 11 November 2017 showing an overall band of 6.0 and observed that this was less than two years before the application date; the Tribunal treated that evidence as meeting cl.5A407 and hence cl.572.223(1A)(a)(i). That directly answered the delegate's stated deficiency (lack of proof of English proficiency).
For educational qualifications the Tribunal had the applicant's Matriculation and Senior Secondary School certificates and her Australian/VET certificates (Cert III, IV, Diploma). The Tribunal applied Departmental policy equivalence (Certificate III = Year 11) and concluded cl.5A409 was satisfied.
For financial capacity the Tribunal engaged in a multi-step, text-driven process:
It identified the 'first 12 months' period per cl.5A101 and, because the applicant's principal course had only two weeks remaining and an allowance of six weeks to depart was pragmatic, calculated a two-month first period (First 12 months section).
It computed outstanding course fees, living costs (using the prescribed annual basic rate and pro rata), secondary applicant living costs and travel costs, deriving a total of $9,188 for two months.
It accepted a money deposit in the name of Ashok Kumar at Punjab National Bank of 2,500,000 INR as a money deposit held by an 'acceptable individual', accepted Punjab National Bank as a 'financial institution', and accepted the affidavit of support and the applicant's declaration of access to the funds.
It specifically addressed the regulatory requirement to be satisfied that the applicant will have access to the funds while holding the visa and found the applicant had genuine access (Access to funds section).
Those discrete regulatory findings, grounded in the Regulations and in the evidence, produced the single legal outcome: the Tribunal was satisfied the applicant met cl.572.223(1A)(a), (b) and (c), and remitted the matter to the delegate to reconsider the visa grant.
Before this decision, the applicable statutory framework was the Migration Act 1958 (s.65) and the Migration Regulations 1994, including Schedule 2 cl.572.223 and Schedule 5A evidentiary rules for assessment levels. This decision did not change the law; it applied the existing statutory framework to the facts. The case is an example of the AAT applying Schedule 5A evidentiary rules, the definition of 'first 12 months' in cl.5A101, and the Department's policy equivalence guidance for AQF certificates when assessing schooling equivalence under cl.5A409.
After the decision, the practical import is that an AAT tribunal may accept: (i) an IELTS score within two years meeting the Schedule 5A threshold as satisfying cl.572.223(1A)(a)(i); (ii) Departmental guidance equating AQF Certificate III to Year 11 as sufficient for cl.5A409; (iii) a long-term fixed bank deposit in the name of an acceptable individual plus affidavit of support as satisfying the money deposit/acceptable source requirement in cl.5A408; and (iv) a pragmatic, pro rata approach to the 'first 12 months' calculation where the applicant's course completion is imminent. The decision therefore provides useful administrative guidance for practitioners preparing Subclass 572 applications and appeals, though it is not binding precedent beyond the parties.
Tribunal's finding on the delegate's reason for refusal (Application for Review, para 3).
English proficiency acceptance (English language proficiency - clause 5A407).
'First 12 months' pro rata calculation (First 12 months section and Total costs).
Acceptance of grandfather's fixed deposit and affidavit (Financial capacity requirements - clause 5A408).
Genuine access (Access to funds - cl.572.223(2)(c)).
This decision is instructive in fact patterns where:
Practitioners should note that where a course is almost complete, a pro rata calculation of the 'first 12 months' is a relevant and potentially determinative approach.
This is an AAT decision; the text does not record later judicial treatment. The decision applies the Regulations to the facts and is persuasive for tribunals and decision-makers dealing with similar evidentiary packages. It is not a binding authority in courts. The principles it applies, particularly on what constitutes acceptable evidence of funds (money deposit in a sponsor's name plus affidavit) and the pro rata approach to the 'first 12 months', may be relied upon in future AAT reviews, subject to the particulars of each case and any contrary findings in higher courts or by later tribunal panels. Users should check for subsequent AAT or judicial decisions that address money deposits, genuine access, or the calculation of the 'first 12 months' since those are fact-sensitive areas.
Degree of proof for 'genuine access': The Tribunal accepted the applicant's assertion and the affidavit of the grandfather as sufficient to establish genuine access. The decision does not set out a detailed analytic test for 'genuine access' (for example, documentary evidence of withdrawal privileges or power of attorney). For future cases, the degree and type of evidence required to establish genuine access in more contested circumstances remains open.
Acceptance of overseas bank instruments: The Tribunal accepted a long-term fixed deposit with Punjab National Bank as an acceptable money deposit and took the bank to be a financial institution for the Regulations' purposes. If the deposit were in a less recognised institution, or subject to restrictive withdrawal terms, whether such instruments suffice remains fact-specific and unresolved here.
Pro rata calculation boundary: The Tribunal adopted a pragmatic pro rata approach where the principal course was nearly complete. The decision does not provide a bright-line rule for when pro rata treatment is appropriate. Cases with longer residual enrolments, overlapping courses, or more complex travel/return arrangements may raise contested issues.
Weight of Departmental guidance vs. documentary evidence: The Tribunal applied Departmental policy guidance equating AQF Certificates to years of schooling. Where documentary evidence is ambiguous or policy guidance differs from internationally comparable frameworks, how to resolve conflicts will be a live question.
Extent of Tribunal remittal directions: The Tribunal directed that the applicant meets cl.572.223(1A)(a),(b),(c) and remitted for reconsideration. The scope for a delegate to revisit other discretionary matters or new adverse material on remittal is procedural and may raise questions as to the limits of the Tribunal's direction on remittal.
Practitioners should take from this decision the importance of assembling contemporaneous documentary evidence of English proficiency within the two-year window, clear documentary proof of schooling and qualifications (with AQF equivalence evidence), a clear financial evidentiary package that demonstrates both sufficiency and access, and an awareness that tribunals may apply sensible, pragmatic calculations to temporal requirements like the 'first 12 months'.
(i) if the application is made outside Australia - on the day of the applicant's expected arrival in Australia; or
(ii) if the application is made in Australia - on the day that the student visa is expected to be granted to the applicant; and
(i) the day 12 months after the beginning of the period;
(ii) the last day of the applicant's proposed stay in Australia.
ATTACHMENT - Extracts from the Migration Regulations 1994
572.223 (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(iii) if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and
(b) the applicant meets the requirements of subclause (1A) or (2).
(1A) If the applicant is, and was, at the time of application, an eligible vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student:
(a) the applicant gives the Minister evidence that the applicant has:
(i) a level of English language proficiency that satisfies the applicant's eligible education provider; and
(ii) educational qualifications required by the eligible education provider; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:
(i) the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii) the costs and expenses required to support each member (if any) of the applicant's family unit.
(a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant's financial capacity.
The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first-named applicant meets cl.572.223(1A)(a), (b) and (c) of Schedule 2 to the Migration Regulations 1994.