Alkali (Migration)

[2018] AATA 3106

Alkali (Migration) [2018] AATA 3106 (25 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mohammed Bala Alkali

CASE NUMBER:  1701739

DIBP REFERENCE(S):  BCC2016/3198919

MEMBER:Lilly Mojsin

DATE:25 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 25 July 2018 at 5:09pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) –Genuine access to funds – Applied for a fee waiver – Transfers of monies from overseas – No evidence of receipt of funds – Insufficient funds to meet living costs  – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 500.214

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 12 January 2017 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 27 September 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this review refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The applicant appeared before the Tribunal on 14 March 2018 and 28 March 2018 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present application is whether the applicant has genuine access to funds.

6. The applicant has provided to the Tribunal

   ·Bank account details held in Diamond bank showing 33539456 Naira [$121,292.05] at 30 January 2018

   ·First Bank statement for period 30 July 2016 to 30 January 2017

   ·Zenith Bank Statement from 13 July 2016 to 15 December 2016

   ·Letter from applicant that he was unable to attend adjourned hearing to be held on 21 March 2018 as he needed to provide evidence of acess to funds from his parents. As Nigeria only allows $10000 to be sent every quarter it generally takes 5 days to receive funds so he will not have received funds.

   ·CBA  Bank statement from 3 December 2016 to 3 February 2017 that the applicant had less that $850 in the bank

   ·Application for fee reduction

   ·PAYG Salary statement

   ·Arrangement plan dated 26 September 2016  MoneyMe Financial Group  for debt $944

7. Clause 500.214 requires the applicant to meet certain financial requirements. If the applicant is required to do so by the Minister, they must give evidence of financial capacity that satisfies the requirements set out in an instrument: cl.500.214(3). All primary applicants must also satisfy the Tribunal that, while they hold the visa, sufficient funds will be available to meet their costs and expenses during their intended stay in Australia, as well as the costs and expenses of any members of their family unit who will be in Australia: cl.500.214(2). The Tribunal must also be satisfied that the applicant will have genuine access to the relevant kinds of funds.

8. In the present application, the Minister has required the applicant to give evidence of financial capacity in accordance with cl.500.214(3).

9. The requirements for evidence of financial capacity for cl.500.214(3) are set out in IMMI 18/010, which is attached to this decision.

10. The applicant may demonstrate that he has genuine access to sufficient funds to meet the costs and expenses of his intended stay in Australia by providing evidence in an acceptable form that his parent/spouse or de facto partner had an annual personal income of at least AUD60,000 in the 12 months immediately before the applicant applied for his student visa.

11. The applicant does not claim that his parent/spouse or de facto partner had an annual personal income of at least AUD60,000 in the 12 months immediately before the applicant applied for his student visa.

12. Alternatively the applicant may establish that he could meet the requirements of cl.500.214 by demonstrating he has access to sufficient funds to meet travel expenses, living costs and annual course fees.

13. The Tribunal has discussed with the applicant the financial requirement for 12 months.t The applicant is studying a Diploma of Project Management.

Living Cost for 12 months	20290
Travel Cost AUD	1000
Course Fees	8000
Total Funds Required AUD	29290

1. Clause 10 of IMMI 18/010 requires that evidence of financial capacity be in the form of a money deposit with a financial institution or loan with a financial institution or government loan or scholarship or financial support.

2. The applicant has provided a bank account from Diamond Bank showing at 30 January 2018 $121,292.05.

3. As the applicant has provided evidence of funds that meet the requirements set out in in IMMI 18/010, the Tribunal is satisfied that the applicant meets cl.500.214(3).

4. As the applicant has shown available in a bank account more than the required $29 290, the applicant has sufficient funds available to meet costs and expenses while the applicant holds the visa. The Tribunal is satisfied that the applicant meets cl.500.214(2).

5. To meet cl.500.214(1), the Tribunal must also be satisfied that the applicant will have genuine access to the funds referred to above.

6. The applicant applied for a fee waiver on 2 February 2018 stating that he only had $48.00 in the bank, received a salary of $956 per fortnight and relied on funds from family overseas and an overseas credit card allowing him to withdraw $1000 per month.

7. At the Tribunal hearing it was put to the applicant that he had only provided information that his father had sent him monies during the 2014-15 years. It was put that he had not shown evidence that he can access his father’s money in 2018. The Tribunal put to the applicant that since 2014 monies can be transferred from Nigeria for children overseas and he had not shown any current transfers. He said that he expected to receive funds of $10 000 every 3 months and would receive the monies in about 3 weeks.

8. The Tribunal gave the applicant further time ie until 21 April 2018 to produce further evidence of receipt of those funds. The applicant did not provide any further information to the Tribunal.

9. The applicant’s bank accounts indicate that he has less than a few hundred dollars in his bank at any one time. As the applicant has not provided any evidence to the Tribunal that he has received any funds, from the overseas account of his parent, since applying for the visa in September 2016, the Tribunal the finds that the applicant does not have sufficient funds to meet travel/living/course fees costs as required.

10. On the basis of the above, the Tribunal is not satisfied that the applicant meets cl.500.214(3).

11. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.214.

12. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Lilly Mojsin
    Member

    
    

    Attachment – IMMI 18/010 – Financial capacity instrument (extract)

    Part 2 – Requirements for applicants

    6  Subclass 500 (Student) visa – primary applicants

    (1) For the purposes of subclause 500.214(3) of Schedule 2 to the Regulations, a primary applicant must give to the Minister evidence of financial capacity that satisfies the requirements of subsection (2), (3), (4), (5) or (6).
                 Note: For primary applicant, see section 4 of Part 1 of this instrument.

    (2)     The evidence of financial capacity:

    (a)    is in the form specified in section 10; and

    (b)   demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of the primary applicant:

    (i)travel expenses; and

    (ii)        the following living costs and expenses:

    (A)   if the primary applicant intends to stay in Australia for a period of 12 months or more – AUD20,290 (annual living costs); and

    (B)   if the primary applicant intends to stay in Australia for a period of less than 12 months – the pro rata equivalent of annual living costs, calculated as specified in section 11; and

    (iii)       the following course fees, minus any amount already paid:

    (A)   if the duration, or the remainder, of the primary applicant’s period of study in Australia is less than 12 months – the fees for the course of study or the remaining components of the course of study; or

    (B)   If the duration, or the remainder, of the primary applicant’s period of study in Australia is more than 12 months – course fees for the first 12 months of the period study in Australia; and

    Note: The period of study is the period commencing:

    (a)   if the applicant’s first course of study commenced after the date of application, on the first day of the first course of study; or
    (b)     if the applicant’s first course of study commenced before the date of application, on the date of application, and ending on the final day of the applicant’s final course of study.

    (c)    demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of each secondary applicant making a combined application with the primary applicant:

    (i)travel expenses; and

    (ii)        for each secondary applicant who intends to stay in Australia for a period of 12 months or more – the following costs (annual living costs):

    (A)  for a spouse or de facto partner - AUD7,100; and

    (B)  for a dependent child - AUD3,040; and

    (iii)       for each secondary applicant who intends to stay in Australia for a period of less than 12 months – the pro rata equivalent of annual living costs, calculated as specified in section 11; and

    (iv)       the following school fees for each school-age dependant:

    (A)  if the school-age dependant intends to stay in Australia for more than 12        months - AUD8000 (annual school costs); or

    (B)  if the school-age dependant intends to stay in Australia for less than 12 months – the pro rata equivalent of annual school costs, calculated as specified in section 11; or

    (C)  if the school-age dependant is enrolled in a course of study at a State or Territory government school where the fees have been waived, and the Primary Applicant is enrolled in a course as a doctoral degree student, a Foreign Affairs student, a Defence student or  a Commonwealth sponsored student – nil.

    Note: For secondary applicant, see section 4 of Part 1 of this instrument.

    (3)        The evidence of financial capacity:

    (a)    is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and

    (b)   demonstrates that the primary applicant’s parent, spouse or de facto partner has a personal annual income, in the 12 months immediately before the application is made, that is:

    (i)if there is no secondary applicant– at least AUD60,000; or

    (ii)            if there is a secondary applicant  – at least AUD70,000.

    (4)        The evidence of financial capacity is the primary applicant’s completed AASES form.

    Note: AASES form is defined in regulation 1.03 of the Regulations to mean, for a secondary exchange student, an Acceptance Advice of Secondary Exchange Student form from the relevant State or Territory education authority, containing the following declarations:

    (a)   a declaration made by the student’s exchange organisation, accepting the student;

    (b)     a declaration made by the student’s parent, or the person or persons having custody of the student, agreeing to the exchange.

    (5)        If the primary applicant is a Foreign Affairs student – the evidence of financial capacity is a letter of support from the Department of Foreign Affairs and Trade.

    (6)        If the primary applicant is a Defence student – the evidence of financial capacity is a letter of support from the Department of Defence.

    7  Subclass 500 (Student) visa – secondary applicants included in the primary student visa holder’s application

    (1) For the purposes of subclause 500.313(3) of Schedule 2 to the Regulations, a secondary applicant who is included in the primary student visa holder’s application, must give to the Minister evidence of financial capacity that satisfies the requirements of subsection (2), (3), (4), (5) or (6).

    (2)          The evidence of financial capacity:

    (a)    is in the form specified in section 10; and

    (b)   demonstrates that sufficient funds are available to meet the costs and expenses of the primary student visa holder set out in subparagraphs 6(2)(b)(i) to (iii) of this Part; and

    (c)    demonstrates that sufficient funds are available to meet the costs and expenses of each secondary applicant making a combined application with the primary student visa holder specified in paragraphs 6(2)(c)(i) to (iv) of this Part.

    (3)          The evidence of financial capacity:

    (a)    is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and

    (b)   demonstrates that the primary student visa holder’s parent, spouse or de facto partner has a personal annual income that is at least AUD70,000.

    (4)          If the primary student visa holder is a Foreign Affairs student and has provided a letter of support mentioned in subsection 6(5) of this Part – the evidence of financial capacity is the letter of support if the letter of support indicates that the Department of Foreign Affairs and Trade will meet the living costs and expenses of each secondary applicant.

    (5)          If the primary student visa holder is a Defence student and has provided a letter of support mentioned in subsection 6(6) of this Part – the evidence of financial capacity is the letter of support if the letter of support indicates that the Department of Defence will meet the living costs and expenses of each secondary applicant.

    (6)          If:

    (a)     the primary student visa holder is a Foreign Affairs student or a Defence student and has provided a letter of support mentioned in subsection 6(5) or (6) of this Part; but

    (b)   the letter of support does not indicate that the relevant department will meet the living costs and expenses of each secondary applicant;

    then the evidence of financial capacity:

    (c)    demonstrates that sufficient funds are available to meet the costs and expenses of the secondary applicant specified in paragraphs 6(2)(c)(i) to (iv) of this Part.

    8   Subclass 500 (Student) visa – secondary applicants not included in the primary student visa holder’s application
    (1) For the purposes of subclause 500.313(3) of Schedule 2 to the Regulations, a secondary applicant (the first secondary applicant), who is not included in the primary student visa holder’s application, must give to the Minister evidence of financial capacity that satisfies the requirements of subsection (2), (3), (4), (5) or (6).

    (2)          The evidence of financial capacity:

    (a)    is in the form specified in section 10; and

    (b)   demonstrates that sufficient funds are available to meet the costs and expenses of the primary student visa holder specified in subparagraph 6(2)(b)(ii) of this Part; and

    (c)    demonstrates that sufficient funds are available to meet course fees for any component of the primary student visa holder’s course of study which will be completed while the first secondary applicant is in Australia, up to an amount equivalent to fees for 12 months of the course of study, minus any amount already paid; and

    (d)   demonstrates that sufficient funds are available to meet the costs and expenses of each secondary student visa holder and that the first secondary applicant has sufficient funds available to meet their own costs and expenses, and the costs and expenses of each additional secondary applicant making a combined application with the first secondary applicant, specified in subparagraphs 6(2)(c)(ii) to (iv) of this Part; and

    (e)    demonstrates that the first secondary applicant has sufficient funds available to meet their own travel expenses and the travel expenses of all additional secondary applicants making a combined application with the first secondary applicant.

    (3)          The evidence of financial capacity:

    (a)    is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and

    (b)   demonstrates that the primary student visa holder’s parent, spouse or de facto partner has a personal annual income that is at least AUD70,000.

    (4)          If the primary student visa holder is a Foreign Affairs student and has provided a letter of support mentioned in subsection 6(5) of this Part – the evidence of financial capacity is the letter of support if the letter of support indicates that the Department of Foreign Affairs and Trade will meet the living costs and expenses of each secondary applicant.

    (5)          If the primary student visa holder is a Defence student and has provided a letter of support mentioned in subsection 6(6) of this Part – the evidence of financial capacity is the  letter of support if the letter of support indicates that the Department of Defence will meet the living costs and expenses of each secondary applicant.

    (6)          If:

    (a)the primary student visa holder is a Foreign Affairs student or a Defence student and has provided a letter of support mentioned in subsection 6(5) or (6) of this Part; but

    (b)   the letter of support does not indicate that the relevant department will meet the living costs and expenses of each secondary applicant;

    then the evidence of financial capacity:

    (c)    demonstrates that sufficient funds are available to meet the costs and expenses of each secondary student visa holder and that the first secondary applicant has sufficient funds available to meet their own costs and expenses, and the costs and expenses of each additional secondary applicant making a combined application with the first secondary applicant, specified in subparagraphs 6(2)(c)(ii) to (iv) of this Part; and

    (d)   demonstrates that the first secondary applicant has sufficient funds available to meet their own travel expenses and the travel expenses of all secondary applicants making a combined application with the first secondary applicant.

    9  Subclass 590 (Student Guardian) visa – primary applicants

    …………………………

    10  Evidence of financial capacity

    The following forms of evidence of financial capacity are specified:

    (a)    money deposit with a financial institution;

    (b)   loan with a financial institution;

    (c)    government loans;

    (d)   scholarship or financial support.

    11  Pro rata equivalent

    In this Part, the pro rata equivalent of annual costs is calculated by:
    a)    dividing the annual amount by 365; and
    b)   multiplying the resulting number by the number of days the applicant is intending to stay in Australia.