BRAR (Migration)

[2018] AATA 2466

BRAR (Migration) [2018] AATA 2466 (21 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  KULDEEP SINGH BRAR

CASE NUMBER:  1724726

HOME AFFAIRS REFERENCE:                BCC2017/2923136

MEMBER:Lilly Mojsin

DATE:21 June 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 21 June 2018 at 2:36pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa –Subclass 500 (Student) – Genuine access to funds – Sponsored by parents – No evidence of bank account details – Practice and Procedure – Failure to appear before the Tribunal – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 441G

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 29 September 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 15 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 the applicant did not provide evidence of genuine access to financial funds.

4. The applicant appealed that decision to this Tribunal attaching a copy of the Department decision to his application for review.

5. By letter dated 4 May 2018 and emailed to the applicant in accordance with s.441G of the Migration Act 1958, the applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, at a hearing on 21 June 2018 at 11.30 am.

6. The applicant was advised that, if he failed to attend the scheduled hearing and an adjournment was not granted, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.

7. The applicant did not attend the Tribunal on 21 June 2018 and the Tribunal received no explanation.

8. In these circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The delegate of the Department found that a bank letter from Punjab & Sind Bank dated 16/08/2017 attached to the application was not in the applicant’s name and found that the applicant did not provide any documentary evidence to demonstrate sponsorship and his genuine access to these funds. Therefore the delegate found that no evidence was provided to the Department that the applicant was sponsored by his parent.

10. The applicant did not provide any evidence to the Tribunal despite being requested to do so by letter of 4 May 2018 sent by the Tribunal.

    REASONS AND FINDINGS

11. 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 the applicant. Genuine access to funds (cl.500.214)

12. 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.

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

14. 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.

15. The applicant has only provided a bank letter from Punjab & Sind Bank dated 16/08/2017 without any explanation was to whose bank account this was. Therefore the Tribunal places no weight on this document. The applicant has not provided any documents to the Tribunal to support his application. Therefore the Tribunal finds that the applicant does not meet cl.500.214(3).

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

17. 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.

18. Accordingly, the decision under review must be affirmed.

    DECISION

19. 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)

    …

    6Subclass 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.

    7Subclass 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.

    8Subclass 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.

    …

    10Evidence 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.

    11Pro 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.