Kashish Kumar (Migration)

[2019] AATA 5348

Kashish Kumar (Migration) [2019] AATA 5348 (13 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kashish Kumar Kashish Kumar

CASE NUMBER:  1829209

HOME AFFAIRS REFERENCE(S):          BCC2018/3172673

MEMBER:Meredith Jackson

DATE:13 August 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 13 August 2019 at 12:49pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – request for postponement declined – non-appearance at scheduled hearing – financial capacity – insufficient evidence before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.214

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 September 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 22 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 delegate was not satisfied the applicant met the financial requirement.

Tribunal invitation to hearing

4.    On 4 July 2019 the Tribunal invited the applicant to attend a hearing at 1:00 pm on 12 August 2019. In its correspondence, the Tribunal explained to the applicant the submissions required to be made at least seven days prior to the hearing, describing in some detail the type of documents on which an applicant might rely to satisfy the criteria for the grant of the visa. The correspondence sent to the applicant clearly laid out that if he was not able to attend the hearing, then the Tribunal “… will only change this date if satisfied that you have a very good reason for being granted an adjournment”. And: “If you wish to have your hearing adjourned on medical grounds, you must provide us with a medical certificate certifying that you are unable to attend and give oral evidence. The certificate must also indicate when the medical practitioner considers you will be able to attend a hearing and give oral evidence. If you have a representative acting on your behalf, medical certificates should be submitted no later than two business days before the scheduled hearing day, where available: Migration and Refugee Matters Practice Direction, at paragraph 7.4. Additionally it is the Tribunal’s general practice to conduct a hearing by telephone if an applicant is unable to attend in person. If you are unable to participate in a hearing by telephone on medical grounds, you must provide a medical certificate that clearly states this. Requesting your hearing be adjourned on medical grounds without providing appropriate medical evidence may result in the Tribunal refusing your request. If you do no attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us…”

Applicant request for postponement

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

6.    On Sunday 11 August 2019 at 9:30pm the agent wrote to the Tribunal requesting a postponement of the hearing, stating:

“My client has advised me that he is unwell and has been recommended bed rest by the medical practitioner. It would be not possible for him to attend the hearing on the day. Please find attached medical certificate which states his medical condition.”

7.    The request for postponement was considered at 8.45am on Monday 12 August 2019. While the migration agent had stated that his client’s medical condition would be explained by the medical certificate, the Tribunal noted the certificate stated only that:

“Mr Kashish Kumar has a medical condition and is advised to have bed rest from 10/8/2019 to 14/8/2019 inclusive. (Signed) Dr Vinod Kumar”.

8.    The Tribunal considered the certificate and decided not to grant the postponement. At 9.21 am the Tribunal wrote to the applicant’s migration agent to advise him that the hearing would proceed and to offer the applicant the alternative of attending by telephone.

9.    A file note stamped 9:26am states that the applicant telephoned the Tribunal, asking whether his hearing was “still on today”. A Tribunal officer described the contents of the correspondence sent earlier that morning to his migration agent and advised the applicant to contact the agent. The applicant undertook to do so. A file note stamped 9:34am states that the Tribunal called the agent to ensure he had received the Tribunal’s correspondence. The agent stated that the applicant was “quite sick” and would not be able to attend the hearing. He undertook to contact his client.

1. The applicant did not attend the hearing at the scheduled time and no satisfactory reason for his non-appearance has been given.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 meets the financial requirement.

Genuine access to funds (cl.500.214)

1. 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.

2. 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.

Amount needed to be shown

1. The decision record of 21 September 2018 stated that the applicant was required to show financial capacity to meet travel expenses, living costs and annual course fees. The delegate calculated these expenses to be AUD 34,284, comprising AUD 2,000 for travel expenses, AUD 20,290 for living expenses and AUD 11,994 for course fees. The decision record stated, in summary, that as the applicant had not provided evidence of his financial capacity with his application, a demonstration of sufficient funds to meet the relevant expenses was not evident and the delegate was not satisfied the applicant had shown financial capacity as specified by legislative instrument.

2. The Tribunal has considered the delegate’s funds calculation, but is unable to calculate anew the amount required to be shown at the date of this decision. The applicant made no submissions to the Tribunal prior to the hearing to establish the relevant facts required to calculate the funds amount. In calculating such an amount, it is necessary for the Tribunal to first understand the length of the applicant’s intended period of stay, any fees liable to be paid, and to then consider evidence as to the source and nature of funds, and the provider of those funds, and the circumstances on which the applicant might rely to demonstrate his financial capacity and whether he has access to the funds. In the absence of submissions in relation to the applicant’s financial arrangements and circumstances, and in the absence of submissions from the applicant confirming that he is enrolled in a registered course, the Tribunal is unable to calculate the amount of funds needed to be shown. The Tribunal is satisfied the applicant had significant time in which to provide evidence to support his case.  He has been aware since 21 September 2018 of the need to demonstrate genuine access to funds; and been aware since the Tribunal’s invitation to attend a hearing, sent on 4 July 2019, of the need to provide evidence of both enrolment and genuine access to funds prior to this decision being made.

3. The Tribunal has then considered the applicant’s sole submission to the review, the medical certificate provided the night before the hearing on Sunday 11 August 2019. The applicant is relying on this submission to persuade the Tribunal to postpone the scheduled hearing. The Tribunal is not convinced that a postponement request based entirely on a medical certificate that states only that the applicant was unable to attend the hearing because of a medical condition is sufficient. For the Tribunal to consider providing an adjournment or additional time for the applicant to make submissions, the Tribunal prefers more detailed information, of the kind outlined for the in his invitation to attend the hearing and as described earlier in these reasons (paragraph 4). The Tribunal has also considered the applicant’s interactions with the Tribunal on the morning of the hearing and is in no doubt that the applicant was aware that his request for a postponement of the hearing had been refused and also that he had an active opportunity to attend by telephone. The Tribunal is not convinced that the applicant was unfit to participate by telephone as it has no supporting evidence before it that this was the case.

4. The Tribunal has also considered that the applicant was properly and clearly advised of the need to provide relevant submissions to demonstrate financial capacity and other requirements such as evidence of current enrolment. The Tribunal notes the applicant made no submissions of this kind and considers that the applicant has been aware since the time of the delegate’s decision of the need to demonstrate financial capacity and satisfy the requirements of the Regulations, and was further made aware of that need in the Tribunal’s invitation to the hearing.

5. As the applicant has not made submissions other than to provide a medical certificate and postponement request the night before the hearing, the Tribunal does not have before it sufficient evidence to demonstrate that the applicant satisfies the financial capacity requirement.

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

7. As the Tribunal is not satisfied the applicant will have genuine access to the funds, cl.500.214(1) is not met.

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

9. 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.