KADO (Migration)

[2018] AATA 1139

KADO (Migration) [2018] AATA 1139 (8 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  KADO KADO

CASE NUMBER:  1611458

DIBP REFERENCE(S):  BCC2016/1531627

MEMBER:Lilly Mojsin

DATE:8 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 08 March 2018 at 5:21pm

CATCHWORDS
Migration - Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Whether the applicant genuinely intends to stay in Australia temporarily as a student – Whether the applicant has access to required funds – Applicant does not have access to required funds

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 1, Item 1222, Schedule 2, 572.223(2)(c), Schedule 5A, cl 5A411

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 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 to the Department of Immigration for the visa on 21 April 2016. The delegate decided to refuse to grant the visa on 12 July 2016. The delegate decided to refuse to grant the visas because the applicant did not satisfy the requirements of cl.572.232 of Schedule 2 to the Regulations because the applicant did not provide evidence of financial capacity.

3. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations).

4. Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

5. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.232 of Schedule 2 to the Regulations.

6. The applicant appeared before the Tribunal on 22 November 2017 and on 24 January 2018 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The delegate of the Department refused the visa as the delegate was not satisfied, due to the lack of financial evidence provided, that the applicant had access to sufficient funds. The delegate assessed that at the date of application the applicant was required to provide evidence of financial capacity of $27,007.

9. The applicant provided to the Tribunal a Confirmation of Enrolment [CoE] that he was studying at the Stanley International College a Certificate III in Spoken and Written English commencing on 13 November 2017 and ending on 13 April 2018, and a Diploma of Leadership and Management commencing on commencing on 21 May 2018 and ending on 5 July 2019.   

10. In relation to the course fees, the applicant stated that the amount outstanding for enrolment fees is $4 200. The Tribunal has estimated the applicant's travel costs to be $2 000.

11. The Tribunal discussed that the applicant must therefore demonstrate financial capacity in the following amounts:

Course fees	$ 4 200
Living costs	$18 610
Travel costs	$ 2 000
TOTAL	$24 810

1. The applicant provided a submission to the Tribunal giving reasons for studying the courses in which he was enrolled and indicating that he intended to work in Bhutan in the fast growing tourism industry, in particular the hotel and resort sector. He believes he would be able to operate at management level after completing his studies.

2. The applicant states that financial support comes from his family to pay tuition fees and he has employment for 20 hours per week netting an average of $450 per week. The applicant has continuous employment in Australia and supports himself through this income.

3. The applicant provided the following documents

   ·a bank statement from Bhutan National Bank Limited

   ·letter from the applicant’s father stating that Bhutan law only allows him to transfer $2400 per month

   ·Commonwealth Bank statement showing an amount less than $2400 has been transferred to the applicant’s account

   ·letter from Bhutan National Bank Limited dated 8 December 2017 certifying that the applicant’s father has the equivalent of AUD $35,111

   ·Birth certificate and family tree

   REASONS AND FINDINGS

4. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

5. The issue before the Tribunal is whether the applicant is a ‘genuine applicant for entry and stay as a student’ having regard to the prescribed matters.

6. The applicant is a citizen of Bhutan. The applicant is subject to assessment level 2 IMMI14.014 and cl.5A411.

7. Clause 572.232 states:

   If the applicant is subject to assessment level 2, the Minister is satisfied that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.

8. In relation to the financial capacity requirements to be met, the Tribunal relies upon its calculations as set out above, noting that the applicant is single and thus has no costs for dependents or schooling costs. The Tribunal finds that he is required to demonstrate that he has funds from an acceptable source sufficient to meet costs of AUD $24 810 as required by cl.5A411.

9. The applicant relies upon a bank account held by his father in Bhutan National Bank Limited dated 8 December 2017, with the equivalent of AUD $35,111.  The applicant has provided one bank account, in his own name, showing an amount of $2 390 was transferred to him on 2 February 2018 and an earlier bank statement from 27 September 2017 to 21 November 2017 that never had more than $2 700 in the account at any one time and did not show any transfers from his father.   

10. The Tribunal accepts that the applicant’s father has sufficient funds in his bank in Bhutan to demonstrate financial capacity as required by cl.5A411. The Tribunal also accepts that the statement made by the applicant’s father that he is only able to transfer the sum of $2 400 per month. But the applicant has been studying in Australia since 2016. The Tribunal is not satisfied that one payment of $2 390 made by the applicant’s father to the applicant in February 2018 demonstrates that the father is providing funds to accumulate the level of funding required. Nor has the applicant himself shown that he is providing funds to accumulate the level of funding required. Further whilst the applicant’s father has sufficient funds, the Tribunal is also not satisfied the applicant has access to those funds. The applicant has only shown bank accounts in his own name that have not held an amount of more than $2 700 on any one day. 

11. The Tribunal is not satisfied the applicant has provided evidence that the applicant has funds from an acceptable source, either himself or his father, that are sufficient to meet cl.5A411.

12. As the applicant does not meet cl. 5A411, and the Tribunal is not satisfied the applicant is able to access the funds in the Bhutan Bank account the Tribunal is not satisfied the applicant meets cl.572.223(2)(c).

13. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    Lilly Mojsin
    Member