Kanj Hawchar (Migration)

[2021] AATA 763

Kanj Hawchar (Migration) [2021] AATA 763 (4 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Firas Kanj Hawchar

CASE NUMBER:  1910057

HOME AFFAIRS REFERENCE(S):          BCC2019/672413

MEMBER:Mark Bishop

DATE:4 January 2021

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 04 January 2021 at 3:25pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– adequate evidence of genuine access to funds provided–  applicant is currently enrolled – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 500.211, 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 11 April 2019 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 February 2019. 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).

4. The applicant appeared before the Tribunal on 16 December 2020 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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)

7. 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.

8. 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?

9. 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.

10. The delegate made a finding the applicant failed to provide adequate evidence of GAF.

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

12. On 1 December 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”.

13. 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.

14. 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 18 above.

15. In addition, on 1 December 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.

16. On 11 December 2020 the applicant provided a written response to the above invitation. He provided a written submission and attachments as follows:

    ·Current Enrolment

    oAn attached copy of the Applicants current Confirmation of Enrolment (CoE BF760F35) shows that the Applicant is currently enrolled in a Certificate IV in Marketing and Communication at Australis Institute of Technology and Education. The expected course end date is 2 January 2022.

    ·Past Studies

    oThe Applicant was previously enrolled in General English at MEGA Education.

    oThe Applicant was previously enrolled in a Certificate IV in Business at MEGA Education. A copy of the Certificate is attached.

    oThe Applicant was previously enrolled in a Diploma of Business at MEGA Education. A copy of the statement of attainment is attached.

    oThe Applicant was previously enrolled in an Advanced Diploma of Business at MEGA Education. A copy of the statement of attainment is attached.

    oThe Applicant was previously enrolled in a Bachelor of Commerce at Torrens University Australia, the Applicant withdrew from this course after the first semester. A copy of the COE is attached.

    oThe Applicant was previously enrolled in an Advanced Diploma of Leadership and Management at Australis Institute of Technology and Education. A copy of the Certificate of Enrolment and letter from the institution is attached.

    ·The Applicant has genuine access to funds

    oIn accordance with the requirements we attach the following Documents that demonstrate the Applicant has genuine access to sufficient funds to meet his costs and expenses during his intended stay in Australia:

    oCommonwealth Bank of Australia Bank statement in the name of the applicant with $30,725.03 (dated 9 December 2020)

    oA statement of account showing that the Applicant has paid the first terms tuition fees.

    ·Conclusion

    oIt is submitted that in light of the evidence and information before the Tribunal, the Tribunal should be satisfied that the Applicant, while in Australia has access to sufficient funds and will be 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.

17. In response to the request for information outlined in paragraphs 13 to 16 above the applicant did comply with the request 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”

18. The information outlined above in paragraph clearly showed the applicant had been enrolled in many courses since mid-2016. There was no evidence before the Tribunal that the applicant had completed any courses of study post July 2016.

19. In response to the written submission summarised at paragraph 16 above the Tribunal wrote to the applicant on 15  December 2020 in the following terms:

    ·Please advise the applicant the Tribunal does not regard  the bank statement as provided as adequate evidence of Genuine Access to Funds (GAF). Advise the applicant the Tribunal desires to sight a copy of the bank statement and transaction record for a period of 6 months prior to the 9th of December 2020. If there has been a large deposit or deposits into the account in the period prior to  December 2020 the Tribunal wishes to be provided with an explanation of the source of those funds, the period of deposit of the funds and a statement from the provider of the funds that the applicant will have genuine access to those funds for the period of 12 months from the commencement of his course. In addition the Tribunal wishes to be provided with a written statement from the provider of such funds as to the source of his funds.

    ·Also advise the applicant the Tribunal would like to receive written submissions as to the outcome of all courses enrolled in after 2016 accompanied by Certificates of Graduation and statements of academic progress in each particular course.

    ·The Tribunal wishes to sight the above documentation prior to the scheduled review hearing.

20. In evidence the applicant advised the Tribunal as follows:

    ·The source of funds relating to the large balance in the Commonwealth bank account related to two deposits on 7 and 9 December 2020. The funds were provided to the applicant by his father for the purpose of his education in Australia and were provided by family and a family friend for the applicant “to keep” for his education in Australia;

    ·He was 25 years of age, unmarried and did not have any dependants in Australia;

    ·He had completed a course in General English, a Certificate IV in Business, a Diploma in Business and an Advanced Diploma of Leadership and Management;

21. The Tribunal provided a detailed summary of the documents required to be provided that went to GAF and were summarised at paragraph 19 above. The Tribunal stressed to the applicant that  any documents provided in original and in Arabic needed to be translated in English by an approved translator.

22. The Tribunal advised the applicant he could have until midday 22 December 2020 to provide the requested information and the applicant undertook to comply.

23. On 22 December 2020 the applicant provided the following documents to the Tribunal:

    ·Copy of a Commonwealth bank statement dated 16 December 2020 in the name of Firas Kanj Hawchar showing deposits from 1 June 2020 until 16 December 2020 inclusive of two large deposits as follows:

    o$15,000 on 7 December 2020 from a Momtaz Nadim Abou Kanj with reference details;

    o$16,000 on 7 December 2020 from Clearview Plumbing Service identified as “credit to account”;

    oThe Tribunal notes both of these deposits were made after the Tribunal notice of hearing issued 1 December 2020;

    ·Letter from  Mohammed Yahya Toameh owner of Clearview Plumbing Services dated 17 December 2020 outlining reasons for transfer of $15,000 to the applicant on 7 December 2020;

    ·Letter from Momtaz Nadim Abou Kanj giving reasons for transfer of $15,000 to the account of the applicant on 7 December 2020 and statement that the remitter understood the applicant will use the funds for his stay in Australia and he has complete access to the funds;

    ·Letter from Maan Kanj Hawchar Law Firm of Tripoli stating the sender of the funds as outlined above is the father of the applicant and the funds related to money outstanding for professional services and statement of genuine access by the applicant’s father to the applicant;

    ·Relevant family registration detail;

    ·Statements of completion of two Business related courses and a Statement of Attainment of units completed in an Advanced Diploma in Business as at July 2018

24. There is no evidence before the Tribunal that shows that applicant has completed any course of study post 2017 in Australia. The evidence shows the applicant has enrolled in multiple courses from 2017 until the present time. The evidence shows the applicant completed a Certificate IV in Business and a Diploma in Business in 2016 and 2017. The evidence shows the applicant is currently enrolled in a course of study.

25. The current review applicant is not a GTE matter under cl.500.212. Accordingly the Tribunal has no regard to the lengthy period of non-achievement and non-completion of studies in various courses since mid-2017.

26. The review application is a GAF matter under cl.500.214.

27. The applicant is required to provide evidence of GAF amounting to $26,541 calculated as outstanding tuition fees of $4,500, cost of living of $21,041 and an airfare of $1,000.

28. The applicant did provide current proof of GAF to the Tribunal. The evidence before the Tribunal does satisfy LIN 19/198 (see paragraph 14 above in addition).

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

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

    DECISION

31. 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.