Davinder Singh (Migration)

[2021] AATA 292

Davinder Singh (Migration) [2021] AATA 292 (4 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Davinder Singh

CASE NUMBER:  1919303

DIBP REFERENCE(S):  BCC2019/1392985

MEMBER:C. Packer

DATE:4 February 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) Student Guardian (subclass 590) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 590 (Student) visa:

·cl.590.216 of Schedule 2 to the Regulations

Statement made on 04 February 2021 at 12:29pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 590 (Student Guardian) – evidence of financial capacity – money deposit with financial institution – applicant’s brother and sister-in-law’s additional repayments to mortgage with redraw facility – short period of stay and study remaining – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 10(a), (b), 65
Migration Regulations 1994 (Cth), Schedule 2, cl 590.216(2), (3)

CASE
Patel v MIAC (2013) FCR 3

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 28 June 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 590 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 March 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the Subclass 590 (Student Guardian) visa to provide welfare arrangements for daughters Ekamjot Kaur Sahota and Muskan. The applicant did not seek to undertake study in Australia.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.590.216 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant had provided sufficient evidence of financial capacity as specified by legislative instrument.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a Subclass 590 (Student Guardian) visa are set out in Part 590 of Schedule 2 to the Regulations. Clause 590.216 provides:

   590.216
   (1) The applicant will have genuine access to:

   (a) funds of a kind mentioned in subclause (2); and

   (b) funds that evidence financial capacity, as mentioned in subclause (3).

   (2) While the applicant holds the visa, sufficient funds will be available to meet
      (a) the costs and expenses of the applicant during the applicant’s intended stay in Australia; and
      (b) the costs and expenses of each member of the applicant’s family unit (if any) who will be   in Australia; and
     (c) unless the applicant meets the requirements of subclause 590.211(4), the costs and
     expenses of each nominating student.
   (3) The applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).
   (4) The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).

7. In sum, the applicant must give evidence of financial capacity that satisfies the requirements set out in an instrument: cl.590.216(3). The primary applicant 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 and each nominating student who will be in Australia: cl.590.216(2). The Tribunal must also be satisfied that the applicant will have genuine access to the relevant kinds of funds.

8. The applicant has nominated two students: daughters Ekamjot Kaur Sahota (aged 8) and Muskan (aged 13).

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

9. The requirements for evidence of financial capacity for cl.590.216(3) are set out in the instrument LIN 19/198, which is attached to this decision.

10. On 3 December 2020 the applicant provided Confirmation-of-Enrolments (COE) for each daughter. The first COE shows:

    ·Ms Sahota

    ·Provider: Department for Education [00018A] (trading as: South Australian Government Schools)

    ·Course: Primary Years [045804C]

    ·Course Level: Primary School Studies

    ·Course Start Date: 29/04/2019

    ·Course End Date: 16/04/2021

    ·Initial Pre-Paid Tuition Fee: $AU 9,180

    ·Other Pre-Paid Non-Tuition Fee: $AU 200

    ·Total Tuition Fee: $AU 21,000

11. The second COE shows:

    ·Ms Muskan

    ·Provider: Department for Education [00018A] (trading as: South Australian Government Schools)

    ·Course: Secondary Years 8-10 [047134J]

    ·Course Level: Junior Secondary Studies

    ·Course Start Date: 01/02/2021

    ·Course End Date: 16/04/2021

    ·Initial Pre-Paid Tuition Fee: $AU 0

    ·Other Pre-Paid Non-Tuition Fee: $AU 0

    ·Total Tuition Fee: $AU 3,250

12. At the time of this decision the applicant seeks to have less than a 12 month stay in Australia. The period of stay and study that remains is from 4 February 2021 to 16 April 2021 (72 days).

13. The applicant must therefore demonstrate genuine access to sufficient funds to meet costs and expenses during the intended stay in Australia. These comprise for him (the primary Student Guardian applicant): travel expenses $1,000; living costs and expenses $4,151.

14. Costs and expenses for each nominating student: Ms Sahota- travel expenses $1,000; living costs and expenses $4,151; course fees minus any amount already paid.

15. For Ms Muskan- travel expenses $1,000; living costs and expenses $4,151; course fees minus any amount already paid.

16. The total funds that need to be shown are therefore $15,453 ($5,151 each) plus unpaid course fees.

17. A submission argues that the applicant’s brother and sister-in-law have available funds of around $127,000 that they could draw from their home loan account:

    We further submit that our client, Mr Davinder Singh and his daughters have genuine and easy access to funds. Our client is demonstrating that through his brother Mr * and sister-in-law, Mrs *. They have the available funds of around $127,000 in the form of additional repayments in their home loan account. The additional repayments are the extra money which a home loan owner put in the account to save some interest on the amount but this extra money is always readily available. The available amount is more than sufficient to cover all the costs during their intended stay in Australia (Clause 590.216).

18. A ‘Complete Home Loan Summary’ from an Australian bank shows that on 2 November 2020 the applicant’s brother and sister-in-law had made additional repayments of $127,814.34. A note on the document stated:

    You have the option to redraw your additional repayments. You can check your Available Redraw balance in NetBank, the CommBank App or by contacting us. Any amount redrawn will increase your loan balance.

19. Section 10 of the Instrument prescribes four types of evidence capable of satisfying cl.509.216(3):

    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.

20. Additional mortgage repayments which enjoy a redraw facility do not constitute a loan with a financial institution (s.10(b)).[1]

    [1] In Patel v MIAC (2013) FCR 35, the Court, in the context of the pre 1 July 2016 student visa framework, determined that a loan with a financial institution was a legally enforceable agreement by which a financial institution promises to advance funds to a borrower on condition that the funds be repaid.

21. There is no judicial consideration on whether mortgage repayments subject to a redraw facility could satisfy s.10(a). Departmental policy also fails to provide a definition of “money deposit with a financial institution” or what it might exclude, however it does provide examples of what might satisfy it, e.g. term deposits or fixed deposits. The critical issue is therefore whether money has been ‘deposited’. The Macquarie Dictionary defines ‘deposit’ as “to place for safekeeping or in trust” or “money placed in a financial institution”.[2]

    [2] Macquarie Dictionary online [>

    In sum, the purpose of cl.590.216(3) is to ensure that an applicant has access to funds to allow them to sustain themselves and their nominating student/s while in Australia. Additional mortgage repayments which enjoy a redraw facility appear to be easily accessed funds deposited with a financial institution, that would ensure that purpose is met. There appears to be no material difference between additional redrawable mortgage repayments and a term deposit, fixed deposit, or other general savings deposit account. The Tribunal is satisfied that additional mortgage repayments subject to a redraw facility satisfy the definition of s.10(a): money deposit with a financial institution.

22. The Tribunal accepts that the applicant’s brother and sister-in-law have available funds of around $127,000 that are deposited in a Home Loan account. The bank document states “You have the option to redraw your additional repayments”, and so the Tribunal accepts that these funds can be readily drawn from their home loan account. The persons offering financial support are close relatives who have already supported the applicant. The Tribunal is satisfied that the applicant will have genuine access to the relevant kinds of funds.

23. The Tribunal is satisfied that the applicant has genuine access to sufficient funds available to meet his costs and expenses during his intended stay in Australia, as well as the costs and expenses of each nominating student who will be in Australia, amounting to $15,453 ($5,151 each) plus unpaid course fees.

24. On the basis of the above, the Tribunal is satisfied that the applicant meets cl.590.216.

25. 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 Student (Temporary) (Class TU) Student Guardian (subclass 590) visa.

    DECISION

26. The Tribunal remits the application for a Student (Temporary) (Class TU) Student Guardian (subclass 590) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 590 (Student) visa:

    ·cl.590.216 of Schedule 2 to the Regulations

    C. Packer
    Member

    
    

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

    9 Subclass 590 (Student Guardian) visa – primary applicants
    (1) For the purposes of subclause 590.216(3) of Schedule 2 to the Regulations, a primary Student Guardian applicant must give to the Minister evidence of financial capacity that satisfies the requirements of subsection (2) or (3).

    Note: For primary Student Guardian 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 Student Guardian applicant has sufficient funds available to meet the following costs and expenses of the primary Student Guardian applicant:

    (i) travel expenses; and

    (ii) the following living costs and expenses:

    (A) if the primary Student Guardian applicant intends to stay in Australia for a period of 12 months or more – AUD21,041 (annual living costs); and

    (B) if the primary Student Guardian 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

    (c) demonstrates that the primary Student Guardian applicant has sufficient funds available to meet the following costs and expenses of the nominating student:
    (i) travel expenses; and
    (ii) the following living costs and expenses:

    (A) if the primary Student Guardian applicant intends to stay in Australia for a period of 12 months or more – AUD21,041 (annual living costs); and

    (B) if the primary Student Guardian 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) course fees for any component of the nominating student’s course of study which will be completed while the primary Student Guardian 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 the primary Student Guardian applicant has sufficient funds available to meet the following costs and expenses of each secondary Student Guardian 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 Student Guardian 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 Student Guardian applicant’s spouse or de facto partner has a personal annual income that is at least AUD72,592.

    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.