Gotla Madhanmohan (Migration)

[2020] AATA 2816

Gotla Madhanmohan (Migration) [2020] AATA 2816 (20 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abhishek Yadav Gotla Madhanmohan

CASE NUMBER:  1836201

HOME AFFAIRS REFERENCE(S):          BCC2018/3232257

MEMBER:Mark Bishop

DATE:20 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 20 April 2020 at 3:46pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – genuine access to funds – enrolment in a registered course – Provident Fund statement – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.211, 500.214; r 1.03

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 21 November 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 27 August 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 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 failed to provide sufficient evidence of Genuine Access to Funds (GAF).

4. The applicant appeared before the Tribunal on 14 April 2020.

5. The applicant was represented in relation to the review by their registered migration agent.

6. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant did not raise any concerns as to conducting the review hearing by phone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. The applicant provided a copy of the decision record to the Tribunal. The date of decision was 21 November 2018.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

   Genuine access to funds (cl.500.214)

10. 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.

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

    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. A COE or other form of proof of enrolment functions as a record of a student’s enrolment status in an approved course and as proof of enrolment for the purpose of cl.500.211. Critically it provides enrolment detail (e.g. course commencement and conclusion dates, course particulars, education provider particulars, tuition costs and amounts paid) and course costs of an applicant for a student visa and is evidence of course fees that is an element of financial capacity as outlined in cl.6(2) of LIN 19/198 Financial Capacity Instrument for the purpose of cl.500.214.

14. On 21 November 2018 the delegate made a finding the applicant failed to provide adequate evidence of GAF. See paragraph 3 above.

15. An applicant is required to provide current information to the Tribunal to satisfy GAF as set out in cl.500.214.

16. On 26 March 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”.

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

    1.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.

    2.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.

    3.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 “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” as outlined in paragraph 19 above.

19. In addition on 26 March 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 9 April 2020 the applicant provided a written response to the Tribunal as follows:

    ·Proof of confirmation of health cover until 30 June 2021;

    ·Contact details of new Migration Agent;

    ·Confirmation of Enrolment in a Certificate III in Commercial Cookery created 9 April 2020 commencing 1 May 2020 and concluding 30 April 2021. The COE listed outstanding tuition fees of $8,500;

    ·Confirmation of Enrolment in a Certificate IV in Commercial Cookery created 9 April 2020 commencing 18 May 2021 and concluding 28 September 2021. The COE listed outstanding tuition fees of $4,500;

    ·Confirmation of Enrolment in a Diploma of Hospitality Management created 9 April 2020 commencing 11 October 2021 and concluding 4 April 2022. The COE listed outstanding tuition fees of $4,500;

21. In evidence to the Tribunal the applicant advised as follows:

    ·He came to Australia in February 2015 to study a Master of IT (Networking). He completed a number of semesters of study in this higher degree. He discontinued his study in this degree in June 2018;

    ·Thereafter he enrolled in a Diploma of Automotive in August 2018. His education provider cancelled his enrolment in this course of study in February 2019;

    ·He had not been enrolled in any course of study since February 2019 and no provider would offer him enrolment in a course of study;

    ·He advised he did not engage in any study from February 2019 until his current enrolment in a series of hospitality courses;

22. The applicant is required to provide evidence of GAF amounting to $30,540 (calculated as cost of living of $21,040, tuition fees of $8,500 and travel expense of $1,000).

23. The applicant did not provide proof of GAF to the Tribunal prior to the hearing or during the hearing. When asked for an explanation for this shortcoming the applicant advised it was due to the lockdown in India and he had requested the necessary documents from his home country.

24. The applicant advised he was currently unable to gain evidence of access to funds because of the lockdown in India. The Tribunal accepts there is a lockdown in India (as there is in many parts of the world) and this lockdown may continue for some time. The applicant did not provide any information to the Tribunal that outlined the extent or detail of this lockdown. The applicant did not provide any information that addressed the impact of this lockdown on the banking/finance or deposit taking sectors in his home country. The applicant did not provide any information that addressed the impact of the lockdown on the means of account holders to access accounts or term deposits or gain detail as to account holdings online. The applicant did not provide a statement of support of access to funds in any form to the Tribunal from his sponsor or sponsors. The only current information before the Tribunal that in any way addresses GAF is summarised in paragraph 21 above.

25. Upon request the Tribunal granted the applicant an extension of time until midday Melbourne time Friday 17 April 2020 to provide the necessary information that showed evidence of GAF.

26. At 11.30am on 17 April 2020 the applicant provided the following documents to the Tribunal:

    ·An employment card in the name of GV Mohad Mohan;

    ·Provident Fund Statement from BHEL Employees Provident Fund in the name of GV Madan Mohan showing a closing balance at 31 March 2019 of Rs 13,29,685 (as at 20 April 2020 AUD$27,364.92);

    ·Affidavit of Support in the name of GV Madan Mohan for the applicant dated 16 April 2020 advising the deponent has “access to sufficient funds and sound income to financially support and sponsor his studies and living expenses for the requisite period during his stay in Australia”;

    ·Form 16 issued under the Indian Income Tax Act advising of salary of Rs 1928574 (as at date of decision AUD$39,690.05) in the name of GV Madan Mohan for year ended 31 March 2019

    Source of funds 

27. All of the funds required by an applicant to meet their relevant costs and expenses must also satisfy the requirements of section 10 of the Financial Instrument. This specifies a limited range of evidence of financial capacity which is required, namely: a money deposit with a financial institution, a loan with a financial institution, government loans and scholarship or financial support.

    Financial institution

28. The term ‘financial institution’ appears in both the definition of ‘money deposit’ and also in connection with the provision of loans.

29. It is defined in r.1.03 of the Regulations as a body corporate that, as part of its normal activities, takes money on deposit and makes advances of money under a regulatory regime governed by the central bank (or its equivalent) of the country in which the body corporate operates; and that the Minister is satisfied provides effective prudential assurance. In addition the body corporate must take money on deposit and make advances of money ‘in a way that the Minister is satisfied complies with effective prudential assurance requirements’, enabling the decision maker to consider whether the body corporate itself provides effective prudential assurance.

    Money deposits

30. Having regard to the ordinary meaning of these terms, ‘money’ may include ‘coin or certificates (such as banknotes, etc.) generally accepted in payment of debt and current transactions’, whilst ‘deposit’ may include ‘to place for safekeeping or in trust’ or ‘money placed in a financial institution.  It would therefore appear that the term ‘money deposit’ is intended to encompass cash type assets placed in financial institutions, such as most commonly associated with general savings type deposit accounts. Evidence of a ‘money deposit’ may include, for example, deposit booklets, fixed term receipts, term deposit receipts, or statements or letters from financial institutions confirming the amount of funds deposited in a particular account.

31. Non-cash assets, such as property or other possessions, life-insurance and superannuation policies, or investment in government bonds for example, would not appear consistent with the ordinary meaning ‘money’ and ‘deposit’, and may therefore fall outside of that term.

32. The applicant did not make any submissions as to the Provident Fund Statement from BHEL Employees Provident Fund. The Tribunal has examined the document and it appears to be most like a retirement account that receives contributions from both the employer and employee. The Tribunal was not made aware that the account holder GV Madan Mohan has access to the provident fund whilst he still is employed by his company. The Tribunal is not aware if the account holder is restricted in any way by dint of age (as in Australia) or other conditions from accessing the funds in his name. There is no evidence before the Tribunal that the applicant has genuine access to these funds under any conditions. There is no evidence before the Tribunal that the BHEL Employees Provident Fund is a financial institution within the meaning of LIN 19/198. The Tribunal gives this statement no weight.

33. Alternately the applicant may provide evidence of financial capacity as set out in s.6(3) of LIN 19/198 as set out hereunder

    (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

34. In the current review application the applicant has provided a copy of Form 16 issued under the Indian Income Tax Act advising of salary of Rs 1928574 (as at date of decision AUD$39,690.05) in the name of GV Madan Mohan for year ended 31 March 2019. This sum does not meet the requirements set out in paragraph 33 above.

35. The applicant has not provided current proof of GAF to the Tribunal. There is insufficient evidence before the Tribunal that the applicant satisfies LIN 19/198 (see paragraph 19 above in addition).

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

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

38. 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

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

    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.