Ehtisham (Migration)

[2020] AATA 3845

Ehtisham (Migration) [2020] AATA 3845 (8 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Touseef Ehtisham

CASE NUMBER:  1824972

HOME AFFAIRS REFERENCE(S):          BCC2018/1805963

MEMBER:Mark Bishop

DATE:8 September 2020

PLACE OF DECISION:  Melbourne

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 08 September 2020 at 10:51am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine access to funds – evidence of funds provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 Home Affairs on 8 August 2018 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 24 April 2018. 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 visas 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 failed to provide evidence of Genuine Access to Funds (GAF).

4. The applicant provided a copy of the decision record to the Tribunal. The Tribunal resolved the review application on the papers.

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

6. 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 GAF

8. Genuine access to funds (cl.500.214)

9. 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.

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

11. 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, which is attached to this decision.

13. The delegate made a fining the applicant did not provide sufficient evidence as to GAF to satisfy cl.500.214.

14. The Tribunal is required to make a time of decision finding. This means an applicant is required to provide current information at the time of decision. An applicant is required to provide current information to the Tribunal to satisfy GAF as set out in cl.500.214.

15. On 24 August 2020 the Tribunal wrote to the applicant and invited the applicant to attend a hearing.  The Tribunal advised the applicant “…Please provide all documents you intend to rely on to establish that you meet the criteria for the visa.  The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these and any changes in your circumstances, in providing documents and preparing for the hearing.  Any documents or written arguments sent to us should be in English or accompanied by a translation from a qualified translator”.

16. The applicant complied with this request. On 8 September 2020, the applicant provided a written submission accompanied by appropriate supporting documentation to the Tribunal.

17. The Tribunal requested the applicant provide the following documents at least 7 days prior to the hearing:

    ·A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.

    ·Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.

    Either:

    ·Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument.
    
    OR

    ·Evidence of the annual income of your parents/spouse/de facto partner and that you have genuine access to those funds. Please note: any access to funds information that is from outside of Australia needs to be converted into Australian Dollars (AUD) using the following link: A copy of the conversion needs to be added to any submission with the conversion date.

18. The Tribunal is of the view the applicant was provided with adequate written notice of the need to provide “Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument”

19. In addition, on 24 August 2020 the Tribunal provided a copy of LIN 19/198 Financial Capacity Instrument to the applicant. This instrument in s.6 (2) outlines the detail an applicant is required to provide to comply with the instrument and hence satisfy cl.500.214 of Schedule 2 to the Migration Regulations. The Tribunal is of the view the applicant was provided with adequate written notice of the type of information required to be provided to the Tribunal to satisfy LIN 19/198.

20. On 8 September 2020, the applicant provided the following material to the Tribunal:

    ·Written submission supported by appropriate documentation in in English addressing requirements of GAF inclusive of bank statements, transaction histories, currency conversion extract and statement of support and copies of multiple pieces of relevant documentation (going to health fund obligations and GAF) previously provided to the Department and uploaded to the relevant IMMI Account ;

    ·Copies of Certificates of Graduation in a Diploma and Advanced Diploma in Business, academic transcripts for completion of units in the period December 2017 until December 2019 and a copy of an academic progress statement advising the applicant had completed 71% of his Bachelor of Accounting and is currently enrolled in the remaining units;

    ·Copy of a letter of confirmation of enrolment in the name of the applicant in a Bachelor of Business commencing 31 August 2020 and concluding 13 August 2021. In evidence the applicant advise he was currently enrolled in 3 units and needed to complete a further 7 units in calendar years 2021 to finish his degree. He advised he was yet to pay tuition fees of $11,075 for remainder of the degree calculated at 7 units at $1,575 each:

    ·Copy of a Term Finance Facility from Invest Capital Investment bank Limited dated 3 September 2020 in the name of the applicant’s father in the amount of Pak Rs.5.0 million (at time of decision approximately AUD$41,477 as per currency conversion statement provided by applicant) for a period of one year renewable to meet the education expenses of his son the applicant;

    ·Student Visa Financial Statement in the name of the applicant’s father dated 7 September 2020 to the amount of $41,464 for the purpose of education of the applicant in Australia, a copy of identity documents of the sponsor and a copy of the Family Registration Certificate issued by the Government of Pakistan;

    ·Copy of a psychological report dated 5 September  that addresses ongoing stress and depression problems amongst others caused by delay in the issue of a student visa to a student who is hardworking, conscientious honest and progressing through his academic studies in a comprehensive and diligent manner where he has almost competed his degree. This report in considerable degree provided a prognosis of problems suffered by the applicant, a diagnosis of same and a recommended treatment plan.

21. The Tribunal finds this report (as briefly summarised at paragraph 20 above) is consistent with the academic progress of the applicant. The Tribunal finds the applicant is a genuine temporary entrant to Australia for the purpose of study and has fulfilled all academic obligations and adhered to all visa conditions.

22. The applicant is required to provide evidence of GAF amounting to $33,116 calculated as outstanding tuition fees of $11,075 for outstanding portion of tuition fees for the final 12 months of the course (as per written submission and COE) applicant cost of living $21,041, and an airfares of $1,000.

23. The applicant provided evidence of GAF to an amount in excess of $33,116 and source of funds in translation.

24. The applicant provided current proof of GAF to the Tribunal.

25. On the basis of the above the applicant has provided evidence of GAF to an amount in excess of the amount required under LIN 19/198.

26. On the basis of the above, the Tribunal is satisfied that the applicant meets cl.500.214(3).2

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

27. See above.

28. For these reasons, the Tribunal is satisfied that the applicant meets cl.500.214(2).

    Will the applicant have genuine access to the funds?

29. 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.

30. See above

31. As the Tribunal is satisfied the applicant will have genuine access to the funds, cl.500.214(1) is met.

    Conclusion on cl.500.214

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

    DECISION

33. 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

    Mark Bishop

    
    

    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.