Cordero (Migration)

[2019] AATA 1440

Cordero (Migration) [2019] AATA 1440 (15 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Lorelie Cordero

CASE NUMBER:  1717042

HOME AFFAIRS REFERENCE(S):           BCC2017/1312443

MEMBER:Meredith Jackson

DATE:15 January 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 15 January 2019 at 10:56am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – evidence of financial capacity not provided – course fees – living expenses – travel costs – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.214, 500.218

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 17 July 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 7 April 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 delegate was not satisfied that the applicant had sufficient evidence of financial capacity as specified.

4.    The applicant appeared before the Tribunal on 9 January 2019 to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 has provided evidence that she meets the financial requirements: cl.500.214.

Genuine access to funds (cl.500.214)

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: cl.500.214(1).

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

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

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.

Written submissions considered

1. The Tribunal considered documentary evidence provided by the applicant, including

   i.The delegate’s decision;

   ii.Academic transcripts and certificates related to her studies in Australia;

   iii.A financial sponsorship declaration in the name of Nenita Cordero Bagunas, signed but not witnessed or dated;

   iv.A bank certification of deposit balance in a Landbank account in the Philippines with a balance of P20,545.32 (approximately $AUD548), and monthly bank transaction statements;

   v.Confirmation of Enrolment (COE) documents; and

   vi.Receipts for amounts paid to King’s Institute of Management and Technology totalling $1,250 (submitted at Hearing).

The Hearing

1. At the Hearing, the Tribunal explained to the applicant that the delegate in refusing the visa had made calculations to the effect that the applicant needed to provide evidence of financial capacity of $29,117.50. In calculating the relevant amount needed at the time of its decision, the Tribunal asked the applicant to confirm the remaining period of study and the name of her current course. The applicant hesitated and said she was waiting for a Tribunal decision before paying for her course, and after further questioning stated that she was studying an Advanced Diploma of Business. The Tribunal observed that the applicant had provided a COE for her current course, an Advanced Diploma of Leadership and Management, which was due to finish on 12 April 2019.

2. The Tribunal, under section 359AA of the Act, referred the student to information about her held in the Provider Registration and International Student Management System (PRISMS) and explained its relevance in that the information in the database might be the reason, or part of the reason to affirm the delegate’s decision. The Tribunal gave the applicant a copy of an extract from the database and advised that the information captured a chronological record of the applicant’s academic history in Australia: her enrolments, commencements, cancellations and finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal invited the applicant to comment on it. The Tribunal asked the applicant if she wished to seek further time to consider the information and the applicant responded that she was prepared to comment on the information immediately and said she understood it and why it was relevant to her case.

3. The Tribunal said that while the applicant had claimed in her evidence that she was studying an Advanced Diploma of Business, the PRISMS record indicated that she was studying an Advanced Diploma of Leadership and Management and that she had completed the Advanced Diploma of Business in February 2017. The applicant claimed she had a COE in the Advanced Diploma of Leadership and Management. The Tribunal directed the applicant to the entries in PRISMS and asked the applicant to identify her studies as recorded were correct. She confirmed her most recent enrolment started 16 April 2018 and it was due to be completed in 12 April 2019. The applicant confirmed the entries in PRISMS were correct and she understood their relevance to the decision.

4. The Tribunal questioned the applicant about her evidence that she had sought sponsorship from relatives offshore for her remaining period of stay and she said since coming to Australia she had supported herself financially through savings and a part-time job. Her uncle in the United States was not able to sponsor her and she was secured a commitment from her aunt, Nenita C. Bagunas of the Philippines to sponsor her.

5. The applicant said she was unsure of the amounts required for sponsorship of her remaining time in Australia and the Tribunal then estimated that the amount required was $15,598, consisting of $5,448 in living expenses for 98 days to the end of her course, $1000 in travel, and outstanding course fees of $9,150.

6. The Tribunal questioned the applicant as to any fees paid for the course, and the applicant stated she had been advised by her agent not to pay any fees and wait until the Tribunal had made its decision. She said she had been attending the course since April 2018 “twice a week, once a week” and had paid “two tuitions” of $750. She produced evidence of two payments of $750 to her course provider, but the Tribunal noted these were for another course completed in early 2018.

7. The Tribunal asked the applicant if she could demonstrate she had funds of $15,598 and had genuine access to those funds. These were calculated as around P 590,000 (AUD 15,598) whereas her proposed sponsor in the Philippines had submitted she had P 20,545 (AUD 548) in her bank account and this did not appear to be enough. The applicant then acknowledged this was not enough, and that she was self-supporting and that her aunt was not supporting her.

Conclusions

1. The Tribunal has examined all the evidence submitted by the applicant and noted her sworn statement that her aunt was not supporting her and that her only source of funds was through her ability to support herself by working in Australia. The applicant confirmed that she did not have resources of $15,598 from any other source. Accordingly the Tribunal concludes the applicant is unable to demonstrate genuine access to sufficient funds to meet her study, living and travel costs for the remainder of her stay in Australia.

2. For completeness, the Tribunal has considered the applicant’s submissions in relation to her current and past studies and regarding payments she claims to have made for tuition fees. The Tribunal notes the applicant at the Hearing did not correctly name the course she was currently studying, and appeared to confuse it with one she had completed in the past; and that the applicant had not submitted evidence that she had paid any fees to her provider for her current course; and further, that she submitted that she was studying without having paid any fees for the first eight months of her current course, which on her evidence, she was attending “twice a week, once a week”. The Tribunal does not have before it convincing evidence that she is attending her course, and accordingly the applicant has not persuaded the Tribunal that she is studying without having paid any fees for the first 8 months of a 12 month course.

3. The Tribunal has concluded that the applicant has not provided evidence as required of financial capacity that satisfies the requirements specified in an instrument.

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

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

6. 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

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

Meredith Jackson
Member

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

1. 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.

1. 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.

2. 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.

…

1. 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.

1. 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.