Gurpreet Kaur (Migration)

[2018] AATA 2969

Gurpreet Kaur (Migration) [2018] AATA 2969 (31 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Gurpreet Kaur
Mr Gurpartap Singh

CASE NUMBER:  1704305

DIBP REFERENCE(S):  BCC2016/4069531

MEMBER:Stephen Conwell

DATE AND TIME OF

ORAL DECISION AND REASONS:          31 May 2018 at 1:00 pm (VIC time)

DATE OF WRITTEN RECORD:                22 June 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

CATCHWORDS
Migration– Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – Genuine access to funds – Decision under review affirmed

LEGISLATION
Migration Act 1958
Migration Regulations 1994, Schedule 2, cls 500.214, 500.311

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 21 February 2017 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the Hearing on 31 May 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in the case of Ms Gurpreet Kaur and dependant applicant Mr Gurpartap Singh, File No.1704305. The primary applicant, Ms Gurpreet Kaur, applied for a student visa application on 2 December 2016. By decision of 21 February 2017, the visa application was refused on the basis that the delegate was not satisfied that clause 500.214 of the regulations was met by the applicant.

4. That provision relates to the financial capacity of an applicant as further set out in instruments, the most recent being IMMI 18/010. To that end, an applicant must provide evidence of sufficient funds to meet their annual course fees, subject to whatever fees have been paid to date as well as the living costs and travel expenses of the applicant and any dependent upon the applicant’s visa.  The applicant appeared today at the Tribunal to give evidence and provide submissions.  The applicant was represented by her migration agent.

5. In the course of the Hearing, it was determined that the applicant’s study course fees for the first 12 months was $18,000, which together with the annual living costs of the applicant plus the living costs of her dependant husband and the travel costs estimated for their return to their home country accumulatively came to approximately $47,390 (AUD).  The applicant’s evidence was that she has genuine access to funds held in the name of her in-laws, those funds being held in deposits in India, and there was evidence of those funds being held in the name of the applicant’s in-laws, Lakhwinder Kaur and Ajit Singh, and there was an affidavit of financial support by the deponents, Ajit Kaur and Lakhwinder Singh to that effect. 

6. There was also evidence that the deposit held by Ajit Singh and Lakhwinder Kaur in two separate accounts of 500,000 (INR) each. It was calculated that that amount together amounted to approximately $19,600 (AUD).  The applicant advised that that was the total source of funds on which she sought to rely.  On that basis, that total amount is far short of the 47,390 required to satisfy the financial capacity requirements in the regulations.

7. The applicant requested further time in which to submit evidence of further financial support, and in particular that she wished to apply for a student loan in order to satisfy the financial requirements.  The Tribunal has given consideration to that request for further time, and after due consideration the Tribunal is not satisfied that an extension of further time is necessary or appropriate. 

8. The Tribunal notes that the delegate’s decision was made on 21 February 2017, over 12 months ago.  The Tribunal also notes that its invitation to the applicant to attend today’s Hearing was more than three weeks ago on 3 May 2018, and in that invitation the applicant is invited to provide documents demonstrating that she has genuine access to sufficient funds to meet her costs and expenses as well as the costs and expenses of any dependants, and in this case her husband is listed as a dependant on the applicant’s visa application.  Having given due consideration to the applicant’s request for further time, the Tribunal has decided not to grant the applicant further time and has decided to proceed to the substantive issues in this merits appeal.

9. Having considered the evidence provided in support of her application as well as the oral evidence that the applicant has provided today, and also taking into account the submissions made by the applicant’s representative, in regard to the application the Tribunal notes that the only basis on which the application was refused was the financial capacity criteria, and accordingly the Tribunal has no need to consider the genuine temporary entrant criteria or any of the other personal circumstances of the applicant.

10. In considering the evidence that the applicant has provided in support of her merits review, the Tribunal finds that the applicant seeks to rely on funds which fall well short of the amount which the applicant is required to show to satisfy clause 500.214. Consequently, the Tribunal finds that clause 500.214 is not met by the applicant, and accordingly it is the decision of the Tribunal to affirm the delegate’s decision in regard to the applicant.

11. In regard to the applicant’s husband who is a dependant on the visa, Mr Gurpartap Singh, the Tribunal finds that his application is made purely as a dependant on the applicant’s visa and there is no evidence that he seeks to rely upon any other grounds on which to base his application. Accordingly, his application is based on the requirement that he satisfy clause 500.311 in Schedule 2 of the Migration Regulations.

12. Given that the Tribunal finds that the applicant does not satisfy clause 500.214 in Schedule 2 of the Migration Regulations, it follows that the Tribunal finds that Mr Gurpartap Singh does not satisfy clause 500.311 in Schedule 2 of the Migration Regulations. As a consequence, it is a decision of the Tribunal that the Tribunal is minded to affirm the delegate’s decision in regard to him.

13. The time is now 1 pm.  This Hearing is now concluded. 

    DECISION

14. The Tribunal affirms the decisions under review.

    Stephen Conwell
    Member