1501357 (Migration)

[2015] AATA 3906

1501357 (Migration) [2015] AATA 3906 (15 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Renu Beniwal
Mr Rakesh Kumar Beniwal

CASE NUMBER:  1501357

DIBP REFERENCE(S):  BCC2014/2746370

MEMBER:Antonio Dronjic

DATE:15 December 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 572 Vocational Education and Training visa:

·cl.572.223(2)(c) of Schedule 2 to the Regulations.

Statement made on 15 December 2015 at 2:55pm

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 13 January 2015 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. Where used in this decision:

   a.The applicant refers to the first-named applicant;

   b.COE refers to Certificate of Enrolment;

   c.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   d.VET refers to Vocational Education and Training;

   e.The Department refers to the Department of Immigration and Border Protection;

   f.IELTS refers to the International English Language Testing System.

3. The applicants applied for the visas on 16 October 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).

4. In the present case, the delegate assessed the first named applicant (the applicant) against the criteria for a Subclass 572 visa on the basis of enrolment in Diploma of Business and an Advanced Diploma of Business. The visa was refused because the applicant did not provide the evidence required to demonstrate they she was a genuine student as required by cl.572.223 of Schedule 2 to the Regulations. In particular, the delegate decided that the funds in the possession of the applicant's parents had been borrowed and she would not have access to them while she held the visa. The delegate further found that the applicant has failed to provide evidence of her parent’s regular income that is sufficient to accumulate the declared funds.

5. The Tribunal received a review application from the applicant on 29 January 2015. It was accompanied by a copy of the delegate’s decision.

6. According to the primary decision record, the financial documents submitted by the applicants were forwarded to New Delhi post for verification. The first named applicant’s mother secured an overdraft facility with ING Vysya Bank Limited of INR22, 50,000 against the fixed deposit of INR25, 00,000. The account was opened on 11 October 2014. The advice was that, although the bank accounts presented were genuine, the source of funds for the fixed deposit used as security for the overdraft facility is not an acceptable source. Part of the funds used for the fixed deposit was borrowed by the applicant’s parents from their commission agent by mortgaging their crops. 

7. On 10 November 2015, the applicants’ submitted the following documents:

   ·COE for an Advanced Diploma in Business with the commencement date on 30 November 2015 and the completion date on 28 November 2016. The course fees are set to be $8,500;

   ·Documents showing past studies completed and the qualifications/transcripts awarded;

   ·Statement of the applicant dated 6 November 2015 outlining the immigration and study history since arriving in Australia;

   ·Bank statement from Kotak Mahindra Bank in the name of the applicant’s mother covering the period 11/10/2014 – 12/10/2015

   ·Letter dated 5/11/2015 from Kotak Mahindra Bank confirming that the applicant’s mother has an overdraft facility at ING Vysya (now Kotak Mahindra Bank) of INR22,50,000;

   ·IELTS Report evidencing the applicant’s English language proficiency;

   ·School certificate evidencing the applicant completed Year 12 level in India.

8. The applicants appeared before the Tribunal on 11 November 2015 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

9. This is the summary of the first named applicant’s evidence:

10. The first named applicant is 32 years of age, female Indian national. She is married and have two children aged 10 and 4 who live with her parents and attend school in India. Prior to arriving in Australia, she has completed a Bachelor of Arts Degree in India. Her parents and two brothers are living in India.

11. She first came to Australia in August 2008 as a holder of a Student visa subclass 573. Since arriving in Australia she has completed the following courses:

    Certificate IV in Business from August to December 2008;

    Certificate III and IV in Community Services Work from February 2009 to May 2010;

    Diploma in Community Services Work from February 2010 to January 2011; and

    Diploma in Business from October 2014 to September 2015.

12. In March 2011 she gave birth to her second child. Because of various medical issues affecting both her and her child, she was unable to complete the Certificate IV in Marketing course she enrolled in February 2011. For the same reasons, she cancelled enrolment into a Diploma in Management course at Stanley College she enrolled in August 2011.

13. She was a holder of a subclass 485 visa from 19 March 2013 to 19 October 2014. On 17 October 2014 she applied for a student visa that is subject of the current review on the basis of her enrolment into Diploma in Business and an Advanced Diploma in Business. Both she and her husband are working in Australia.

14. I explained to the applicants that the amount of funds required for their stay and study in Australia is not going to be the same as the one determined by the delegate and referred to in the primary decision record.

15. I explained that based on the COE provided, she proposed to undertake an Advanced Diploma in Business from 30 November 2015 to 28 November 2016. For that reason, the funds will be calculated for the period of first 12 months. She stated that last Friday her mother paid $2,500 for the first instalment for her Advanced Diploma course.

16. At the hearing, the costs are calculated as follows:

    Remaining fees for an Advanced Diploma in Business   $6,000

    Living cost for the primary applicant for 12 months   $18,610

    Living cost for the primary applicant’s husband  $6,514

    Living cost for children  $6,514

    School fees for one child for one year  $8,000

    Travel cost  $3,600

    Total   $49,238

17. The first issue is whether the finds declared are sufficient. I noted that she provided documentary evidence that her mother has an overdraft facility in the amount of INR22, 50,000 (approximately AUD48, 000). According to the statement, the available balance as of 5 November 2015 is INR21, 60,496 (approximately AUD46, 311). I noted that the applicant is some AUD3, 000 short of the funds required. The applicant confirmed her understanding and stated that in addition to these funds, both she and her husband are working in Australia and will be able to cover the shortfall of AUD3, 000. She added that she has provided evidence of her income received from part time employment at Mercy Care.

18. I explained that the second issue is whether she has access to the funds declared and whether a person providing the funds has sufficient regular income to generate these funds.

19. The applicant confirmed that her parents are farmers and they borrowed money from a commission agent in order to raise sufficient funds for the fixed deposit used to secure an overdraft facility. The amount borrowed is usually repaid by selling crops to the same agent. She stated that the money borrowed from a commission agent has already been repaid by her parents and that she provided an affidavit from the commission agent named Sultan Singh. I noted that I do not have a copy of this affidavit before me and the applicant undertook to provide a copy after the hearing.

20. She further stated that her mother sold two properties in India and used that money for the fix term deposit.The applicant stated that she provided J forms as evidence of her mother’s regular income and evidence that her father is receiving pension. She claims that, by selling their crops, her parents are making between 12-13 lacs per year. (Approximately AUD25, 000).

21. She stated that her mother pays college fees by transferring funds from her overdraft account in India to the College account in Australia. To date, her mother made two transfers. The first one was for AUD1, 800 and the second one for AUD2, 500. She explained that both she and her husband had a full time employment during the time they held a subclass 485 visa and they were able to save some funds.

22. On my invitation, the applicant’s representative submitted that the applicant will pay AUD3, 000 for the remaining amount for an Advanced Diploma course.

23. Upon her request, I granted the applicants additional time until 18 November 2015 to provide additional documentary evidence relevant to the financial requirements of the applicable Schedule 5A and in particular evidence of regular income of her parents that is sufficient to generate funds placed in a fixed deposit for the purposes of securing and overdraft facility.

24. On 19 November 2015, the applicants submitted the following documents:

    ·Submissions prepared by their representative stating that the first named applicant’s mother sold two properties in India (in January 2012 and March 2013) and received the total of INR1, 899,700. These funds were placed in the fixed deposit account with the bank. He further stated that the first named applicant’s father receives pension of INR13, 243 per month and that her mother receives regular income of INR1, 200,000 per year from sale of crops. It was further submitted that the second named applicant works on a full time basis at Woolworths in Australia and has earned AUD50, 333 during the past financial year. The first named applicant works at Mercy Care and she has earned approximately AUD25, 000 during the last financial year. The representative submitted that the first named applicant’s mother receives financial support from her two sons who live in India. He wrote that the commission broker, Mr Sultan Singh advanced INR1,800,000 to the first named applicant’s mother in October 2014 and that this amount has been repaid through the supply of crops to Mr Singh.

    ·Evidence of additional payment of $3,000 for the applicant’s proposed course fees made on 13 November 2015;

    ·Tax Invoices from Technical College of Western Australia as evidence of payment of course fees for an Advanced Diploma of Business;

    ·“J” Forms as evidence of the first named applicant’s mothers’ regular income;

    ·PAYG payment summary for the second named applicant evidencing his gross earnings of $50,333 during the past financial year;

    ·Statement from the State bank of India as evidence of regular income (pension) received by the first named applicant’s father;

    ·Affidavits and evidence of income and employment for the first named applicant’s brothers living in India;

    ·Copy Affidavit from Mr Sultan Singh (commission agent from India) dated 1 January 2015 confirming that the amount of INR1,800,000 he advanced to the applicant’s mother ion October 2014 has been repaid

25. On 26 November 2015, the Tribunal wrote the following letter to the applicants:

    …”The applicants claimed that the first named applicant’s mother sold two properties in
    India (in January 2012 and March 2013) and received the total of INR1, 899,700. No documentary evidence, such as deed of sale, was presented to either the Department
    or the Tribunal regarding the sale of these two properties.
    In addition, no evidence was presented to either the Department or the Tribunal that
    the first named applicant’s mother deposited these funds on her bank account in
    January 2012 and March 2013. There is little evidence before the Member that
    payments received from the sale of crops as stated on “J” forms correspond to money
    deposits made by the first named applicant’s mother into her bank account.
    In addition, a letter from the village head evidencing the first named applicant's
    parents' regular income should be provided as it is considered more reliable form of evidence than "J" forms’.

26. The applicants are invited to provide additional documentary evidence concerning the above mentioned issues within 7 days from the day of this letter.

27. On 12 December 2015, the applicant’s representative submitted:

    ·Sale deed dated 3 January 2012 between the vendor, Phoolwati wife of Hukam Singh (Renu Beniwal’s mother) and the purchaser Jarnail Kaur. Sale price of Rupees 19,690,000 (approximately AUD$390,000.00);

    ·Bank statement covering the period 24 October 2011 to 11 January 2012 showing a deposit of the proceeds of sale;

    ·Sale deed dated 19 March 2013 between Renu Beniwal’s mother and the purchaser Chameli Devi. Sale price of Rupees 604,000 (approximately AUD12,400)

    ·Bank statement covering the period  13 April 2011 to 27 September 2011 showing deposits of substantial amounts;

    ·Letter from the sub-divisional land officer confirming the estimated annual income of Renu’ mother as Rupees 750,000.(approximately AUD15,400)

28. The applicant’s representative submitted that the first named visa applicant’s mother deals in sale and purchase of properties and has been reasonably successful in her investments. The proceeds from the sale in January 2012 were substantial and were deposited into her bank account in January 2012 as shown in the bank statement. She also derives income from the farmlands (12 acres) she cultivates as confirmed by the sub-divisional land officer. Renu’s father has some retirement income which is used to pay for the day-to-day expenses. Their sons also assist them financially as is the tradition in India.

29. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

30. In the present case, as the applicant currently has an offer of enrolment to an Advanced Diploma in Business as her 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.

31. The Regulations require that the Minister is satisfied that the applicant while he or she holds the visa he or she will have access to the funds relied upon to satisfy the Schedule 5A financial capacity requirements.

32. The assessment level that applies to the applicant is the highest assessment level at the time of application for the relevant course of study for the subclass of visa: r.1.42.  ‘Assessment level’, and ‘highest assessment level’ is defined in r.1.03.  ‘Assessment level’ means the level of assessment specified by the Minister for a kind of passport.  The highest assessment level for a single course of study that is a registered course is the assessment level for that course of study.  If the applicant is undertaking 2 or more registered courses of study, the highest assessment level is the assessment level for those courses (excluding any ELICOS course) that has the highest number.

33. In this case, the applicant holds a passport of India.  The assessment level for a holder of such a passport for Subclass 572 (the subclass for the applicant’s principal course) is assessment level three.

    Does the applicant have access to the funds?

34. To satisfy the requirements of being a genuine applicant for entry and stay as a student, the Tribunal must 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.

35. The applicant has provided evidence that her mother has an overdraft facility in the amount of INR22, 50,000 (approximately AUD48, 000) with the Kotak Mahindra Bank. This overdraft facility was approved on the basis of the fix deposit of INR25, 00,000 made with the same bank on 11 October 2014. Based on the evidence before me, the current balance (as of 5 November 2015) is INR21, 60,496 (approximately AUD46, 311).

36. According to my calculation of funds the applicants are required to provide evidence of having access to the amount of $49,238. With her payment of $3,000 for the current course fees made on 13 November 2015, the above amount is reduced to $46,238.

37. Following the Tribunal hearing, the applicants provided documentary evidence that the first named applicant’s mother sold two properties in India (in January 2012 and March 2013) and received the total of INR20,294,000(approximately AUD417,370) and that she deposited these funds on her bank account in January 2012 and March 2013. In addition they have provided statement from the State bank of India as evidence of regular income (pension) received by the first named applicant’s father; letter from the sub-divisional land officer confirming the estimated annual income of the first named visa applicant’s mother was  INR750,000.(approximately AUD15,400). The applicants have also provided evidence of their earnings in Australia which exceeded $75,000 during the past financial year.

38. On the basis of this evidence, the Tribunal is satisfied that the regular income of the applicant’s mother is sufficient to accumulate to the level of funding to be provided for the remainder of the applicant’s stay in Australia.

39. It is not disputed by the applicants that the amount of INR1, 800,000 the first named applicant’s mother borrowed from the commission agent formed the part of the fixed deposit amount placed at the bank on 11 October 2014 was used to secure an overdraft facility.   The applicants have provided to the Tribunal an Affidavit from Mr Sultan Singh (commission agent from India) dated 1 January 2015 confirming that the amount of INR1,800,000 he advanced to the applicant’s mother on October 2014 has been repaid.

40. For the reasons above I am satisfied that the funds supporting the overdraft shown by the applicants are funds owned by the applicant’s mother. I am also satisfied that the first named applicant will have access to those funds through overdraft, while holding the visa.

41. Based on the evidence before me, I am 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. Therefore I find that the applicant meets cl.572,223(2)(c)

42. During the course of the hearing, I raised my concerns whether the first named applicant is a genuine temporary entrant as a student and whether she meets cl.572.223 (1)(a). I noted that the first named applicant’s study history, her stay in Australia of more than 7 years, the number of courses she undertook and diverse fields of education is pointing to the factors in the Minister’s Direction No.53. However, considering that the applicants did not have an opportunity to argue their case related to the genuine temporary entrant criteria before the Department I decided to refrain from making any findings on this issue. Further consideration of this issue may be warranted by the Department.

1. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   DECISION

2. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 572 Vocational Education and Training visa:

   ·cl.572.223(2)(c) of Schedule 2 to the Regulations.

   Antonio Dronjic

   
   

   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.