Jakkireddy (Migration)

[2019] AATA 2990

Jakkireddy (Migration) [2019] AATA 2990 (27 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Venkata Rajashekhara Reddy Jakkireddy

CASE NUMBER:  1730122

HOME AFFAIRS REFERENCE(S):          BCC2017/3149455

MEMBER:Meredith Jackson

DATE:27 June 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 27 June 2019 at 3:58pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– Genuine access to funds – financial requirements not met – not enrolled in any course of study– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.214
Education Services for Overseas Students Act 2000

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 10 November 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 30 August 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 the applicant met the financial requirements.

4.    On 18 June 2019 the applicant was invited to appear before the Tribunal on 3 July 2019 to give evidence and present arguments.

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

6.    On 26 June 2019 the applicant wrote to the Tribunal advising that he did not intend to attend the hearing, for the reason that he could not gain enrolment in a Master of Advanced Health Services Management at Griffith University. He submitted that he did not wish to study any other courses. The Tribunal, therefore, has no evidence before it that the applicant is enrolled in a registered course as required for the grant of the visa.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 satisfies the financial requirements.

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.

1. 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?

1. 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. Relevantly, under Schedule 2, part 6, the instrument requires that the evidence of financial capacity:

   (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 …

2. Assessment of financial capacity, therefore, is initially dependent on the decision maker establishing the relevant period of intended stay in Australia (Part 6 (b)). In this case, the applicant has submitted to the Tribunal that he is not enrolled in a registered course, for the reason that he is unable to secure enrolment. Without a relevant enrolment, the Tribunal is unable to determine the financial capacity requirements because the period of stay is a determinant of the amount of funds needed to be shown, and in this case the period is not capable of being determined.

3. The Tribunal has then considered whether the applicant satisfies the financial capacity requirement on any other basis. The applicant has provided to the Tribunal evidence of fees paid for enrolments between 2013 and 2016, a period prior to the visa application date; and provided evidence to the department in the form of an affidavit of financial support from his father, Jakkireddy Vengal Reddy, a citizen of India, dated 30 August 2017. The Tribunal has considered the submissions, however concludes they do not, on their own, provide sufficient evidence to satisfy the financial requirement.

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.

Enrolment

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations and include the criteria in cl.500.211. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

2. 'Course of study' is relevantly defined in cl.500.111 of the Regulations as a 'full-time registered course'. 'Registered course' is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

3. In the invitation to attend the hearing sent on 18 June 2019 inviting the applicant to attend the hearing on 3 July 2019, he was requested to provide evidence of enrolment in a full-time registered course at least seven days before the hearing. Such evidence has not been provided. 

4. In his letter to the Tribunal of 26 June 2019, the applicant stated he was unable to gain enrolment in his preferred course and was not enrolled.

5. Accordingly, there is no evidence before the Tribunal that the applicant is enrolled in any course of study.

6. Therefore the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

7. 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.