CHADA (Migration)

[2018] AATA 1142

CHADA (Migration) [2018] AATA 1142 (9 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SAI KUMAR CHADA

CASE NUMBER:  1700707

DIBP REFERENCE(S):  BCC2016/2689792

MEMBER:Jennifer Cripps Watts

DATE:9 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.214 of Schedule 2 to the Regulations.

Statement made on 09 March 2018 at 3:52pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant has genuine access to required funds – Evidence of access to funds not provided to the Department - Evidence of access to funds subsequently provided to the Tribunal

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 on 3 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 15 August 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 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 delegate was not satisfied the applicant will have genuine access to funds to meet his costs and expenses during the applicant’s intended stay in Australia.

4. The visa that is the subject of this review was refused on 3 January 2017.  The applicant applied for review by this Tribunal on 13 January 2017, within time, and provided the Tribunal with a copy of the Department’s decision to refuse his student visa.  The applicant’s matter was constituted to this member and, on 9 February 2018, the Tribunal sent the applicant a written invitation to attend his hearing scheduled on 9 March 2018.   

5. The invitation to the hearing also included information relating to what evidence the applicant should provide to the Tribunal before his hearing.  He was asked to provide documents that demonstrate he has genuine access to sufficient funds to meet his costs and those of his family members in Australia (if any) covering the relevant period of intended stay, including course fees, living costs, school costs (where relevant) and travel costs over the relevant period. 

6. The applicant requested a hearing postponement because his representative would be unavailable.  The request was not granted.  The representative attended part of the hearing by phone.  The applicant provided the Tribunal with documentary information in support of his application prior to the hearing. 

7. Prior to the hearing, the applicant provided a current COE indicating he is enrolled in a course of study up to 31 July 2018, at the time of this decision. 

8. The applicant attended the scheduled hearing on 9 March 2018.  He was assisted in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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. All criteria must be satisfied at the time a decision is made on the application. The issue in the present case is whether the applicant meets the financial requirements of cl.500.214.

    Genuine access to funds (cl.500.214)

11. 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.

12. On the evidence, at the time of application, the delegate was not satisfied the applicant had genuine access to funds for the period of his intended stay.

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

13. The requirements for evidence of financial capacity for cl.500.214(3) are set out in IMMI 17/012, which is attached to this decision.

14. The applicant provided a current COE that indicates he is enrolled in and has nearly completed a Master of Business Administration at the Holmes Institute in Sydney.  The course commenced on 13 March 2017 and will finish on 31 July 2018.  The applicant said at the hearing he expects the MBA certificate to be provided to him by September 2018 and he intends to depart Australia and return to India around that time.  He said he does not intend to stay in Australia for the October 2018 graduation ceremony or to undertake any further study in Australia when he completes his Masters in July 2018.  In the circumstances, the Tribunal considers his period of intended stay to be from the time of this decision to September 2018, about six months.  

15. The applicant studied and satisfactorily completed a Master of Professional Accounting from July 2015 to December 2016 and the Tribunal has no reason to think he will not complete his current course in July 2018, as shown on his COE and confirmed by him in his oral evidence at the hearing.

16. The applicant provided written submissions to the Tribunal and it is acknowledged in the submissions that he says did not provide paperwork as evidence he had sufficient funds at the time of application in a correct manner.  In essence, he says he did not provide all the right documents to the delegate, but maintains, at the time of this decision, he did have the available funds.

17. The applicant has submitted to the Tribunal that he will require a total of $28,205 for his tuition, travel costs, living expenses and travel for the remainder of his time onshore until his course finishes, to around September 2018.  This includes a total of $17,750 in course fees.  The Tribunal accepts this estimate.

18. The applicant claims to be sponsored by his father for his course fees and said at the Tribunal hearing that he manages his day-to-day living expenses himself.  He said he has a part time job, working 20 hours a week, and makes around $2,000 a month.  He said his living expenses, excluding his course fees, are about $1,500 to $2,000 a month.  The Tribunal accepts this estimate.

19. He recently received a deposit to his personal Commonwealth Bank account from Venkat Reddy Chada, his father, on 27 February 2018 and showed the Tribunal a document as evidence of the transaction, which has been considered and accepted as evidence that the applicant’s father sent him $2,100 in February 2018.  The applicant said his father will pay the $6,000 course fees on 19 March 2018 when the fees become due.  The Tribunal has had regard to documents provided that the show the applicant’s father has been supporting him financially while he has studied in Australia and is prepared to accept, on the face of it, that the applicant’s father will pay the remainder of his course fees in 2018 and that the applicant himself will continue to self-fund for the period of his intended stay, that is, to September 2018.

20. On the basis of the above, the Tribunal is satisfied that the applicant meets cl.500.214(3).

    Are there sufficient funds available to meet costs and expenses while the applicant holds the visa?

21. The applicant has provided the Tribunal with documents and information that he has or will have sufficient funds to meet costs and expenses while he holds the visa and is satisfied that the applicant meets cl.500.214(2).

22. The Tribunal is satisfied the applicant meets cl.500.214(2).

    Will the applicant have genuine access to the funds?

23. 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.

24. On the evidence, the Tribunal is satisfied the applicant will have genuine access to the funds referred to above and that he meet cl.500.214(1).

25. Accordingly, the Tribunal is satisfied that the applicant meets cl.500.214.

26. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

27. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.214 of Schedule 2 to the Regulations.

    Jennifer Cripps Watts
    Member

    
    

    Attachment – IMMI 17/012 – Financial capacity instrument (extract)

    2.SPECIFY under subclause 500.214(4) of Schedule 2 to the Regulations and for the purposes of subclause 500.214(3) of Schedule 2 to the Regulations, that the applicant seeking to satisfy the primary criteria of a Subclass 500 (Student) visa (Primary Applicant) must give to the Minister evidence of financial capacity of the following requirements:

    a)sufficient funds to meet the following costs or expenses of the Primary Applicant, as specified in item 6 of this Instrument:

    i.travel expenses; and

    ii.living costs and expenses as specified in item 5 of this Instrument; and

    iii.course fees covering:

    A.if the duration of the Primary Applicant’s stay in Australia is less than 12 months—the total course fee; or

    B.if the duration of the Primary Applicant’s stay in Australia is longer than 12 months—the first annual course fee; and

    b)sufficient funds to meet the following costs or expenses of each applicant seeking to satisfy the secondary criteria of a Subclass 500 (Student) visa (Secondary Applicant) making a combined application with the Primary Applicant, as specified in item 6 0of this Instrument:

    i.travel expenses; and

    ii.living costs and expenses as specified in item 5 of this Instrument; and

    iii.all school fees for each school aged dependant as specified in item 7 of this Instrument; or

    c)the Primary Applicant’s parents, spouse or de facto partner have personal annual income that is above an amount specified in item 8, and evidenced as specified in item 9 of this Instrument; or

    d)the Primary Applicant’s completed AASES form, as defined in regulation 1.03 of the Regulations; or

    e)for a Primary Applicant sponsored by the Department of Foreign Affairs and Trade—a letter of support from the Department of Foreign Affairs and Trade; or

    f)for a Primary Applicant sponsored by the Department of Defence—a letter of support from the Department of Defence.

    3.SPECIFY under subclause 500.313(4) of Schedule 2 to the Regulations and for the purposes of subclause 500.313(3) of Schedule 2 to the Regulations, that a Secondary Applicant must give to the Minister the evidence of financial capacity that corresponds with the circumstances applicable to the Secondary Applicant in the Schedule to this Instrument.

    4.SPECIFY under subclause 590.216(4) of Schedule 2 to the Regulations and for the purposes of subclause 590.216(3) of Schedule 2 to the Regulations, that the applicant seeking to satisfy the primary criteria of a Subclass 590 (Primary Student Guardian Applicant) visa must give the Minister evidence of financial capacity of the following requirements:

    a)sufficient funds to meet the following costs or expenses of the applicant, as specified in item 0 of this Instrument:

    i.travel expenses; and

    ii.living costs and expenses as specified in item 5 of this Instrument; and

    b)sufficient funds to meet the following costs or expenses of the Primary Student Guardian Applicant as specified in item 6 of this Instrument:

    i.travel expenses; and

    ii.living costs and expenses in item 5 of this Instrument; and

    iii.course fees covering:

    A.if the duration of the Primary Student Guardian Applicant’s stay in Australia is less than 12 months—the total course fee; or

    B.if the duration of the Primary Student Guardian Applicant’s stay in Australia is longer than 12 months—the first annual course fee; and

    c)sufficient funds to meet the following costs or expenses of each member of the family unit applicant making a combined application with the Primary Student Guardian Applicant, as specified in item 6 of this Instrument:

    i.travel expenses; and

    ii.living costs and expenses in item 5 of this Instrument; and

    iii.all school fees for each school aged dependant as specified in item 7 of this Instrument; or

    d)the Primary Student Guardian Applicant’s spouse’s or de facto partner’s annual income that is above an amount specified in item 8, and evidenced as specified in item 9 of this Instrument.

    5.SPECIFY for each applicant that satisfies the minimum requirements specified in item 2, item 3 and item 4 of this Instrument:

    a)if the applicant’s intended stay in Australia is for a period of 12 months or longer, the annual living costs and expenses amounts for the first 12 month period is:

    i.for a student—$19,830 AUD;

    ii.for a student guardian—$19,830 AUD;

    iii.for a spouse or de facto partner—$6,940 AUD;

    iv.for a dependent child—$2,970 AUD; or

    b)if the applicant’s intended stay in Australia is for a period that is less than 12 months, the living costs and expenses amount is the pro rata equivalent of the annual amounts specified in paragraph a) of this item.

    6.SPECIFY the following evidence of financial capacity that satisfies the requirements specified in item 2, item 3 and item 4 of this Instrument:

    a)money deposit with a financial institution;

    b)loan with a financial institution;

    c)government loans;

    d)scholarship or financial support.

    7.SPECIFY for the purposes of subclause 500.214(3) of Schedule 2 to the Regulations, for each Secondary Applicant who is a child of school-age, the evidence to be provided by the applicant of either:

    a)the annual minimum amount for schooling of $8000 per annum; or

    b)if the applicant’s intended stay in Australia is for a period that is less than 12 months, the amount specified for schooling is the pro rata equivalent of the annual amount specified in paragraph a) of this item; or

    c)enrolment in a course at a State or Territory government school where the fees have been waived and the applicant meeting the primary criteria is enrolled in a course as a:

    i.doctoral degree student; or

    ii.Foreign Affairs student; or

    iii.Defence student; or

    iv.Commonwealth sponsored student.

    8.SPECIFY the following annual income amounts that satisfies the minimum requirements specified in item 2, item 3 and item 4 of this Instrument:

    a)$60,000 AUD for an individual Primary Applicant for a Subclass 500 (Student) visa; or

    b)$70,000 AUD if:

    i.one or more Secondary Applicant is seeking to satisfy the secondary criteria for a Subclass 500 (Student) visa; or

    ii.for Subclass 590 (Student Guardian) visa applicants.

    9.SPECIFY as evidence of annual income amount that satisfies the requirements specified in item 2, item 3 and item 4 of this Instrument, official Government documentation of personal income that has been issued in the 12 months immediately before the application is made.

    10.In this Instrument, the pro rata equivalent of an annual amount 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.

    …

    Schedule

Item	Circumstances applicable to the Secondary Applicant	Evidence and requirements of financial capacity
1	i.       the Secondary Applicant’s application is combined with a Primary Applicant’s application; and     ii.       the Primary Applicant does not provide a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument.	Evidence specified in item 6 of this Instrument, to meet the costs and expenses of the Primary Applicant as specified in item 2 of this Instrument.
2	i.       the Secondary Applicant’s application is combined with a Primary Applicant’s application; and     ii.       the Primary Applicant provides a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument; and    iii.       the letter of support indicates that the relevant department will meet the living expenses of each Secondary Applicant.	The letter of support.
3	i.       the Secondary Applicant’s application is combined with a Primary Applicant’s application; and     ii.       the Primary Applicant provides a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument; and    iii.       the letter of support indicates that the relevant department will not meet the living expenses of each Secondary Applicant.	Evidence specified in item 6 of this Instrument, to meet the costs and expenses of the Secondary Applicant as specified in item 2 of this Instrument.
4	i.       the Secondary Applicant’s application is not combined with a Primary Applicant’s application; and     ii.       the Primary Applicant does not provide a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument.	Sufficient funds to meet the following costs or expenses, as specified in item 6 of this Instrument:      i.     travel expenses; and     ii.     living costs for each applicant and the Student visa holder, as specified in item 5 of this Instrument; and    iii.     course fees for the Student visa holder covering: A.   if the duration of the stay in Australia is less than 12 months—the total course fee; or B.   if the duration of the stay in Australia is more than 12 months—the first annual course fee; and    iv.     all school fees for each school aged dependant of the Student visa holder, as specified in item 7 of this Instrument.
5	i.       the Secondary Applicant’s application is not combined with a Primary Applicant’s application; and     ii.       the Primary Applicant provides a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument; and    iii.       the letter of support indicates that the relevant department will meet the living expenses of each Secondary Applicant.	The letter of support.
6	i.       the Secondary Applicant’s application is not combined with a Primary Applicant’s application; and     ii.       the Primary Applicant provides a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument; and    iii.       the letter the letter of support indicates that the relevant department will not meet the living expenses of each Secondary Applicant.	Sufficient funds to meet the following costs or expenses, as specified in item 6 of this Instrument:      i.     travel expenses: and     ii.     living costs for each applicant, as specified in item 5 of this Instrument; and    iii.     all school fees for each school aged dependant of the Student visa holder, as specified in item 7 of this Instrument.
7	i.       the Primary Applicant’s parents, spouse or de facto partner have personal income that is above an amount specified in item 8 of this Instrument.	The evidence specified in item 9 of this Instrument.