Bhatia (Migration)

[2020] AATA 74

Bhatia (Migration) [2020] AATA 74 (5 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Shravani Bhatia

CASE NUMBER:  1728391

HOME AFFAIRS REFERENCE(S):           BCC2017/3134965

MEMBER:David Thompson

DATE:5 January 2020

PLACE OF DECISION:  Perth

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

Statement made on 05 January 2020 at 7:28pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – annual living costs – travel expenses – course fees – genuine access to funds – personal loan from partner’s friend – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration (LIN 19/198: Evidence of financial capacity—Subclass 500 Visa and Subclass 590 Visa) Instrument 2019 (Cth), cls 6, 10
Migration Regulations 1994 (Cth), Schedule 2, cl 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 and Border Protection on 1 November 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 30 August 2017. 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 case 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) because she was not satisfied that the applicant met the prescribed financial requirement for grant of the visa.

4. The applicant appeared before the Tribunal on 27 November 2019 to give evidence and present arguments.

5. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 case is whether the applicant meets the funding requirements prescribed by cl.500.214.

   Genuine access to funds (cl.500.214)

8. 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: cl.500.214(1).

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

10. The applicant has given oral evidence at hearing, and has provided the Tribunal with documentary evidence. Not all of that documentary evidence is relevant to the issue before the Tribunal. Much of it is relevant to other primary criteria prescribed in cl.500.211 to cl.500.218. Some of it is relevant to the requirements of cl.500.214 but is out-dated and of no use in determining whether the applicant meets those requirements at the date of this decision. To the extent that the documentary evidence provided by the applicant is relevant for present purposes, it consists of:

    a.Overseas Student Confirmation-of-Enrolment (CoE) B1822992 with respect to the applicant’s enrolment at Australian Technical College Western Australia in a Diploma of Business, due to start on 13 January 2020 and to finish on 10 January 2021.

    b.CoE B1822E86 with respect to the applicant’s enrolment at Australian Technical College Western Australia in an Advanced Diploma of Leadership and Management, due to start on 11 January 2021 and to finish on 9 January 2022.

    c.A letter dated 4 November 2019 from the Commonwealth Bank of Australia to Mr Amit Ghai confirming an account balance of $40,617.80 as of 3 November 2019 (the CBA letter).

    d.A copy of pages from Mr Amit Ghai’s Indian passport.

    e.A statutory declaration made by Mr Amit Ghai on 25 November 2019.

    f.Payslips issued to the applicant by Dimeo Services (WA) Pty Ltd for the periods:

    i.5 October 2019 to 18 October 2019;

    ii.19 October 2019 to 1 November 2019; and

    iii.2 November 2019 to 15 November 2019.

11. The Tribunal has had regard to all of this evidence, as well as the contents of the Department’s file in this matter and written submissions prepared by the applicant’s registered migration agent, in reaching its conclusion. At hearing, the applicant stated that she had provided the Department with evidence of the value of real property owned by her parents in India. The Tribunal notes that no such evidence appears on the Department’s file.

    Has the applicant provided evidence of financial capacity in accordance with the instrument?

12. The requirements for evidence of financial capacity for cl.500.214(3) are set out in LIN 19/198 (Instrument), which is attached to this decision.

13. In order to satisfy the requirements of cl.500.214(3) the applicant must satisfy the requirements set out in either s.6(2) using evidence in the form specified in s.10 of the Instrument, or s.6(3). There is no evidence before the Tribunal relevant to s.6(3). It follows that in order to meet the criteria laid down by cl.500.214(3) the applicant must satisfy the requirements of s.6(2), by providing evidence of financial capacity demonstrating that she has sufficient funds available to pay her living costs (as determined by s.6(2)(b)(ii)), her travel expenses, and her course fees minus any amount already paid (as determined by s.6(2)(iii)).

14. The applicant proposes to study for a Diploma of Business and an Advanced Diploma of Leadership and Management. The first of those courses will run from 13 January 2020 to 10 January 2021, and the second from 11 January 2021 to 9 January 2022.  The applicant is, therefore, a primary applicant who proposes to stay in Australia for more than 12 months. Her annual living costs, as determined pursuant to s.6(2)(ii), amount to AUD21,041.

15. The applicant stated at hearing that she intended to return to her home country (India), flying from Perth to New Delhi for a visit in January 2020. She will also need to return to her home country at the end of her studies. Her travel expenses are therefore to be calculated by reference to the cost of a return airfare to India in January 2020, and a one-way airfare to India in January 2022. The applicant’s evidence at hearing was that a return airfare between Perth and New Delhi in the month of January would cost between AUD1,200 and AUD1,300. That accords with the results of the Tribunal’s own researches, and for the purpose of this decision the Tribunal finds that the applicant’s relevant travel costs amount to AUD1,800.

16. The applicant’s CoE for the first 12 months of her study (CoE B1822992) states that her course fees for that period amount to AUD9,600, and that she has paid AUD1,350. At hearing, the applicant gave oral evidence that she had paid a total of AUD1,500 in advance for both her proposed courses. That figure is not quite consistent with the figures given on her CoEs as pre-paid fees, being AUD1,850. However, it is only the fees for the first of those courses that are relevant under s.6(2)(iii)(B), and as the applicant has not provided any receipts the Tribunal adopts the figure of AUD1,350 from CoE B1822992 for her pre-paid course fees. The relevant course fee figure is, therefore, AUD8,250.

17. It follows that in order to satisfy the requirements of s.6(2), the applicant must provide evidence of financial capacity demonstrating that she has AUD31,091 available to her. That evidence must take the form provided in s.10 of the Instrument. That is, it must be evidence of either:

    a.money deposit with a financial institution;

    b.loan with a financial institution;

    c.government loans; or

    d.scholarship or financial support,

    or (it would seem on the face of the Instrument) any combination of them.

18. The applicant’s oral evidence at hearing is that Mr Amit Ghai has agreed to lend her the necessary funds. She explained that Mr Ghai is a friend of her partner, Mr Manpreet Singh. The applicant supported that oral evidence with a statutory declaration from Mr Ghai (see paragraph 10(e) above) and the CBA letter (see paragraph 10(c) above).

19. The CBA letter is evidence of a money deposit with a financial institution, and as such falls within s.10 of the Instrument. That fund is significantly greater than the amount of AUD 31,091 mentioned in paragraph 17 above. However, taken on its own the CBA letter goes no further than establishing the existence of a fund. Section 6(2) of the Instrument requires more than that. It requires that the evidence adduced by an applicant both “demonstrates that the primary applicant has sufficient funds available to meet the … costs and expenses of the primary applicant” and that the evidence “is in form specified in section 10.” The CBA letter itself does not demonstrate that the funds it mentions are available to the applicant. The evidence that those funds are available to the applicant must be found, if it is present at all, in Mr Ghai’s statutory declaration. None of the other documentary evidence that the applicant has put forward addresses the issue of the availability of funds at all. 

20. Mr Ghai’s statutory declaration is short, and may be quoted in full. In it, Mr Ghai swears:

    “1.That I am helping my friend Shravani Bhatia financially for her education related expenses while she pursues her studies in Australia.

    2.We have been friends for over a year and I have known her through her partner, Manpreet Singh [handwritten insertion] (partner’s name).

    3 I am supporting Shravani with a total amount of AUD$40,600. The amount is extended as a personal loan that she can pay off after she is financially capable.

    4.Further, this is an interest-free loan that I have extended as goodwill to her, so that she can focus on her studies without worrying about any financial hardship.

    5.I am a current temporary visa holder in Australia. Please see my identification with this declaration.”

21. Mr Ghai’s declaration does not refer to the CBA letter, and does not on its own terms amount to evidence of a money deposit with a financial institution. The Tribunal notes that there is no evidence before it establishing that the amount in question has actually been advanced. Such evidence might, if it took (for instance) the form of an account statement showing payment of the funds into an account held by a financial institution in the applicant’s name, itself satisfy s.6(2). However, as matters stand Mr Ghai’s declaration is at best evidence of a personal loan that Mr Ghai is prepared to extend to the applicant for “education related expenses”. The CBA letter is no more than evidence that Mr Ghai is in a position to make the loan in question.

22. Mr Ghai’s declaration is not evidence of a loan with a financial institution. Nor is it evidence of a government loan. It does not fall within s.10, either taken on its own or in combination with the CBA letter. The written submissions provided by the applicant’s registered migration agent take the matter no further, in that they simply assert that the applicant has taken a loan of AUD40,600 from Mr Ghai. The applicant’s oral evidence at hearing went no further than that. The Tribunal finds that the applicant’s evidence is not sufficient to meet the requirements of s.10 of the Instrument.

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

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

25. 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

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

    David Thompson
    Member

    
    

    Attachment – LIN 19/198 – Financial capacity instrument (extract)

    6 Subclause 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 subsections (2), (3), (4), (5) or (6).

    Note: For primary applicant, see section 4 of Part 1 to 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 – AUD21,041 (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 beginning at one of the following commencement periods and ending on the final day of the applicant’s final course of study:

    (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.

    (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 - AUD7,362 and

    (B)for a dependent child - AUD3,152; 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 - AUD8,296 (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 to 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 AUD62,222; or

    (ii)if there is a secondary applicant – at least AUD72,592.

    (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 Subclause 500 (Student) visa—secondary applicants

    (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 AUD72,592.

    (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 AUD72,592.

    (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.

    …

    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.