KUMAR (Migration)

[2019] AATA 2772

KUMAR (Migration) [2019] AATA 2772 (7 February 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manish KUMAR

CASE NUMBER:  1723889

DIBP REFERENCE(S):  BCC2017/2738632

MEMBER:Bridget Cullen

DATE OF ORAL DECISION:  7 February 2019

DATE OF WRITTEN RECORD:                5 March 2019

DATE CORRIGENDUM

SIGNED:7 August 2019

PLACE OF DECISION:  Brisbane

AMENDMENT:  The following corrections are made to the decision:

1.The date of written record should state 05 March 2019.

2.In Paragraph 8, the words “section 590AA of the Act” should be replaced with “section 359AA of the Act”.

Bridget Cullen
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manish KUMAR

CASE NUMBER:  1723889

DIBP REFERENCE(S):  BCC2017/2738632

MEMBER:Bridget Cullen

DATE AND TIME OF

ORAL DECISION AND REASONS:          7 February 2019 at 10:58 am (QLD time)

DATE OF WRITTEN RECORD:                27 February 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 05 March 2019 at 2:52pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – evidence of financial capacity – evidence of genuine access to funds – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 500.214

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 September 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 7 February 2019 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 application for review of a decision made by a delegate of the Minister for Immigration on 7 September 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under section 65 of the Migration Act 1958.

4. The applicant applied for the visa on 1 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.

5. The delegate in this review refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.214 of schedule 2 to the Migration Regulations 1994. The applicant appeared in the tribunal on two dates. The first hearing was held on 4 January 2019 and the second hearing was held on 7 February 2019. The applicant presented evidence and gave submissions on his behalf on both dates.

6. The purpose of the tribunal having the hearing on a second date was to afford the applicant an opportunity to provide additional information relating to his financial circumstances in accordance with clause 500.214.

7. The criteria for a subclass 500 visa are set out in part 500 of schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 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 this case is whether the applicant has genuine access to funds.

8. At the commencement of the hearing the Tribunal provided the applicant with a copy of his PRISMS records as they are before the Tribunal.  The applicant was asked if he understood the relevance and consequences of the Tribunal relying on the PRISMS information and asked if he was prepared to comment on the PRISMS records at the time of hearing or required additional time in accordance with the process set out in section 590AA of the Act.  The applicant indicated that he was prepared to comment on the information.

9. The applicant explained that since he arrived in Australia in 2014 that he has completed three qualifications.  The first qualification the applicant has completed is a qualification in the English language.  He has additionally, in 2015, completed an Advanced Diploma of Management, and in 2016 completed an Advanced Diploma of Leadership and Management.

10. In 2016, following completion of the Advanced Diploma of Leadership and Management he began to study for a Bachelors in Business at the Holmes Institute.  The applicant has provided the tribunal with a copy of a letter from the Holmes Institute indicating that his course is expected to conclude on 31 December 2019.

11. The applicant has also provided the tribunal with a copy of his notification of results from Holmes Institute that indicate that the applicant did not make any progress toward his degree in 2017 and has completed, as at the time of hearing, a total of six units.  The applicant indicates that he has 10 units left to complete in order to attain the qualification.

12. The applicant has provided the tribunal with some information relating to his financial circumstances.  The applicant has provided a range of documents relating to land certificates of land holdings of his family in India.  The applicant has also provided two deposit confirmations from the HDFC Bank indicating that his father, Mr Banshi Lal has a deposit that the applicant says is worth approximately Australian $45,000.  The deposit records indicate that the deposit maturity date on 10 January 2019 was worth a figure of 2,271,383 Indian rupees.  And the deposit maturity date reflected on the second certificate of 11 July 2019 was 2,326,374 Indian rupees.

13. The Tribunal also acknowledges that the applicant has made some submissions with respect to his financial circumstances.  The applicant seeks to satisfy the criterion relating to his having sufficient funds to meet the costs and expenses incurred during his time in Australia.

14. The applicant has provided the tribunal with a copy of the delegate’s decision record.  In the delegate’s decision record the department calculated the total cost of these expenses to be $37,030 comprised of $1,000 for travel expenses, $18,830 Australian for living expenses, and $16,200 Australian for course fees.

15. The applicant does not seek to meet the alternative requirement to satisfy the tribunal that his parents or spouse have a personal annual income that is above $60,000 Australian in the form of official government documentation of personal income issued in the 12 months immediately before the application was made.  As the applicant has not provided any evidence in line with this requirement the tribunal has considered whether he would satisfy the requirement contained in 500.214(2).

16. The applicant says that he would have access to the funds that are contained in his father’s deposit.  However, the applicant has not provided the tribunal with any evidence that he has actually been able to access those funds, or that he would be able to access those funds, other than to assert in the tribunal hearing that he would be able to.

17. The requirements for evidence of financial capacity for clause 500.214(3) are set out in IMMI 18/010.

18. During the tribunal hearing, the Tribunal provided the applicant with the opportunity to explain how it is that he has been paying for his studies to date and raised with the applicant the concerns that the tribunal had about whether the applicant could access the funds that are contained in the deposit record.

19. The Tribunal indicated that it did not have any information from the applicant about the mechanism for payment of his expenses of the sort that would confirm that he had been able to access the funds that he says are available to him.

20. The Tribunal does not have any evidence from the applicant in the form of bank account records from himself, payment receipts from his course studies or anything further other than the bare assertion that these funds are available to him, which would assist the tribunal in considering whether he satisfies clause 500.214.

21. To meet clause 500.214(1) the tribunal must be satisfied that the applicant will have genuine access to the funds that he has provided information in relation to. The tribunal is not satisfied on the limited information available to it that the applicant satisfies this criterion. For these reasons the tribunal is not satisfied that the applicant meets clause 500.214.

22. Given these findings the tribunal finds that the criteria for the grant of a subclass student visa are not met.  The applicant does not claim to meet the criteria for a subclass 590 student guardian visa and accordingly the decision under review must be affirmed.

    DECISION

23. The Tribunal affirms the decision under review.

    Bridget Cullen
    Member