1419634 (Migration)

[2015] AATA 3722

1419634 (Migration) [2015] AATA 3722 (27 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lokesh BAJAJ

CASE NUMBER:  1419634

DIBP REFERENCE(S):  BCC2014/2248849

MEMBER:Miriam Holmes

DATE:27 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 27 November 2015 at 2:56pm

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 on 21 November 2014 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 for the visa on 8 September 2014. At the time of lodgement, Class TU contained a number of subclasses. With limited exceptions not relevant to this case, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which he or she is enrolled or has an offer of enrolment as his or her principal course, and the corresponding subclass for which that type of course has been specified by the Minister under r.1.40A of the Migration Regulations 1994 (the Regulations).

3. In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa. The visa was refused because the applicant did not provide the evidence required to demonstrate they met the requirement in cl.572.223(2)(c) of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 21 August 2015 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case, as the applicant currently is enrolled in Certificate III in Automotive Electrical Technology and Diploma of Business as his principal course, the subclass that may be granted is Subclass 572. The issue in the present case is whether the applicant is a ‘genuine applicant for entry and stay as a student’ having regard to the prescribed matters. With the exception of the student guardian visa, this is a requirement for all student visas. For Subclass 572, this requirement is contained in cl.572.223, which is extracted in the attachment to this decision.

8. To meet this criterion, the applicant in this case must give evidence in accordance with the requirements set out in Schedule 5A to the Regulations for the highest assessment level for the applicant. Broadly speaking, these requirements relate to English language ability, financial capacity, and other prescribed matters, and differ depending upon the subclass sought and the applicant’s assessment level. Additionally, the Regulations require that the Minister is satisfied that: the applicant is a genuine student having regard to the stated intention to comply with the applicable visa conditions, and any other relevant matter; and that while the applicant holds the visa he or she will have access to the funds relied upon to satisfy the Schedule 5A financial capacity requirements.

   Does the applicant have access to the funds?

9. To satisfy the requirements of being a genuine applicant for entry and stay as a student, the Tribunal must also be satisfied the applicant will have access, while holding the visa, to the funds demonstrated or declared in accordance with the Schedule 5A requirements relating to financial capacity.

10. The Tribunal noted that Mr Bajaj is from India and with the course he is studying he requires funds in accordance with the assessment level 3 in IMMI 10/014. Mr Bajaj stated that he had paid the course fees for his Certificate III course. Mr Bajaj stated that he has no wife or children. Therefore the Tribunal calculated the funds required as at the date of hearing were as follows: $2,333 (course fees, being a third of fees or 6 months for the Diploma of Business), $18,610 living costs and $1500 transport costs, totalling $22,443. The Tribunal notes that as at the date of decision the amount would he slightly higher to account for more of the 12 month period from the date of decision incurring a greater proportion of the course fees for the Diploma of Business.  

11. The applicant provided the following evidence of funds that were available to him for the purposes of the student visa application. He stated that his father held an overdraft of 2300000 rupees (23 Lacs) (approximately $48,000). The applicant referred to a document dated 6 August 2015 from the Punjab national bank which states that the bank has sanctioned an overdraft limit of 2300000 rupees (23 Lacs) and that the security was a fixed deposit in the name of Mr Bajaj’s father amounting to 25 Lacs.  Mr Bajaj stated that the overdraft was secured by a fixed deposit of 25 Lacs (approximately $52,000).  The applicant referred to a document from the Punjab National Bank being a confirmation of deposit showing a deposit on 2500000 (25 lacs) for 3 year period, deposited on 6 August 2015 until 6 August 2018. The Tribunal also noted a document dated 8 August 2015 stating that Mr Bajaj’s father, acknowledged that the applicant will have full access to funds of 2300000 rupees to pay for course fees, educational maintenance and other expenses incurred whilst in Australia. In the document Mr Bajaj’s father refers to the evidence of the money deposit with a financial institution.

12. The Tribunal asked Mr Bajaj where the funds for the Fixed Deposit came from. Mr Bajaj replied that the funds came from a loan that was secured against the house. The applicant then referred the Tribunal to a document dated 4 March 2015 from the Oriental Bank of Commerce, which was a “sanction letter”. This letter noted that the bank actioned on 4 March 2015 a term loan of 1600000 rupees ($3,333) to Mr Bajaj’s father for a term of 84 months and the collateral security was a “Eqm of residential House in the name of”  Mr Bajaj’s father. The document also referred to a personal guarantee by Sh. Sham Sunder Bansal. The Tribunal noted that the value of the loan against the house was significantly less than the value of the fixed term deposit and Mr Bajaj stated that the other income came from income derived by Mr Bajaj’s mother and father.

13. In relation to the income generated by Mr Bajaj’s parents he referred to the following information. In relation to Mr Bajaj’s father he provided tax returns for Mr Chand for 2014/2015 showing gross income of 216930 rupees ($4520) and for 2013/2014 196805 rupees ($4100). Mr Bajaj also provided a document setting out Mr Bajaj’s father’s income from business and profession with a net income of 216930 rupees for 2015. In the submission it states that Mr Bajaj’s father runs an electronics shop and sells watches. In relation to Mr Bajaj’s mother he provided a personal tax of 175000 rupees ($3645) for 2012-2013 and also referred to the tax return for 2014-2015 with a gross income of 209220 ($4,358). Mr Bajaj stated that his mother’s income came from his mother’s boutique and in the submission it states that she works as a dress maker.

14. In addition Mr Bajaj provided bank records from Citibank for the period to show deposits into Mr Bajaj’s accounts from his parents. The Tribunal reviewed these records and noted that There were credits from overseas on the following dates – 19 December 2014 ($1,875), 9 January 2015 ($1894), 9 February 2015 ($1753), 19 March 2015 ($4102), 21 May 2015 ($1,922) and 30 July 2015 $1,684. In the period between 1 December 2014 to 1 August 2015 the applicant received $13,230 and he also generated income from his employment at $105 per week. The Tribunal notes that Mr Bajaj provided a PAYG summary for 2015 showing gross income of $7337 for Mr Bajaj working as a cleaner.

15. Mr Bajaj told the Tribunal that when the visa was refused he planned to return to India and discussed this with his father. However his father, told him that he had an overdraft and Mr Bajaj can access the funds from the overdraft. Mr Bajaj decided to seek review and his father started sending money monthly. He said from the home loan there was money left, so he put the money to the fixed deposit. He also said there was money from his mother’s boutique and his father’s shop.  Later in the hearing Mr Bajaj stated that the money for the fixed deposit came from the old overdraft that was in place at the time of the application.  He stated that 16 lacs came from the home loan and 9 lacs came from the old overdraft.  The Tribunal asked if there was a title document for the home that was the subject of the home  loan, showing ownership of the property, but Mr Bajaj replied that the bank has the title to the property.  Mr Bajaj asserted that his mother’s net profit was $9000, although the Tribunal calculated it was in the vicinity of $4300, Mr Bajaj did not dispute this. He stated that the 2 sets of documents listing the operations of the 2 business were prepared by an accountant, although the Tribunal notes there is no reference to an accountant on the documents.

16. On the evidence presented the Tribunal is not satisfied that Mr Bajaj will have access to the relevant funds. The Tribunal is troubled where the funds for the fixed deposit came from. The gross income of Mr Bajaj’s parents from their businesses is in the vicinity of $4,000 each (combined $8,000) yet they have a fixed term deposit of approximately $52,000 well above their gross income. The applicant initially stated that the fixed term deposit includes money from a home loan and the accumulated income of his parents. The home loan was taken out in March 2014, yet the fixed deposit account was not established until 6 August 2015. Further, the home loan was for only $3,333. Further, the Tribunal found it odd that if the home loan was the source of funds for a fixed deposit, and the home was not the security for the overdraft rather than the fixed term deposit. In relation to the evidence that the money in the fixed deposit comes from the old overdraft – there are no records before the Tribunal showing that the monies were moved from the old overdraft to the fixed deposit. The Tribunal is not satisfied on the evidence presented that the funds in the fixed term deposit were accumulated from the income from Mr Bajaj’s parents and the home loan.

17. In relation to the income deposits in Citibank, the Tribunal accepts these deposits have been made on a regular basis, however the Tribunal is not satisfied on the information provided of the source of that funds. Whilst the deposits state that they are a transfer from Gian Chand Baja HDFC Bank Limited, the Tribunal has no documentation as to the arrangements between Mr Baja and the HDFC Bank and where the source of these come from and whether they will continue to be available. The Tribunal notes the bank records only show such deposits from December 2014, after the visa application was refused, and not for any period before when Mr Bajaj was a student in Australia. This gave the Tribunal serious concern that this source of funds is an ongoing source to funds that the applicant will have access to while the applicant holds the visa. 

18. As the Tribunal is not satisfied the applicant will have access to the relevant funds, cl.572.223(2)(c) is not met.

19. For these reasons, the Tribunal finds that criteria for the grant of a Subclass 572 visa are not met. As there is no evidence the applicant is eligible to be granted a student visa of another subclass, the decision under review must be affirmed.

    DECISION

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

    Miriam Holmes

    
    

    Senior Member

    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:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant meets the requirements of subclause (2).

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

    (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

    (ii)any other relevant matter; 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.