Lidhar (Migration)

[2018] AATA 5902

Lidhar (Migration) [2018] AATA 5902 (11 December 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Ranjeet Kaur Lidhar

CASE NUMBER:  1717482

DIBP REFERENCE(S):  BCC2017/1540517

MEMBER:  M. Edgoose

DATE AND TIME OF

ORAL DECISION AND REASONS:          11 December 2018 at 10:07 am (VIC time)

DATE OF WRITTEN RECORD:                22 February 2019

PLACE OF DECISION:  Melbourne, Victoria

DECISION:  The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – genuine access to funds – insufficient balance in personal bank account – bank account statement from husband of a friend known for a year – no access to funds from home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 19 July 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 11 December 2018 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. The time is 9.53 am on 11 December 2018. This is an oral decision in case number 1717482 and the applicant’s name is Mr Ranjeet Kaur Lidhar.

4. This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 July 2017 to refuse to grant you a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

5. You applied for the visa on 28 April 2017 to undertake study in Australia. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained two sub-classes: Sub-class 500 (Student) and Sub-class 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.

6. The delegate in your case refused to grant the visa on the basis that you 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 you had genuine access to funds.

7. You appeared before the Tribunal on 19 November 2018 and today, being 11 December 2018 to give evidence and present arguments.

8. You were represented in relation to the review by your registered migration agent.

9. 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 the applicant did not meet the financial requirements and genuine access to funds criteria in cl.500.214.

10. To meet cl.500.214, the applicant must (if required by the Minister) give evidence of financial capacity that satisfies the requirements specified in an instrument: cl.500.214(3). The Tribunal must also be satisfied that the applicant will have genuine access to the funds: 500.214(1).

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

12. A delegate of the Minister has made a legislative instrument under cl.500.214 (3) specifying requirements to meet the evidence of financial capacity. The legislative instrument

    applicable to the applicant in the circumstances of her application for a Student visa is IMMI 18/010.

13. On 19 October 2018, a written invitation to attend an initial hearing on 19 November 2018 was sent to you by your migration agent. In the initial invitation, you were requested to

    Case Number 1717482  Page 2 of 5

provide evidence that you meet the financial capacity requirements as described by the relevant legislative instrument, IMMI 18/010.

1. At the hearing today, you were again requested to provide the evidence to the Tribunal, such as evidence you meet the requirements of having genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia. You have not done so.

2. Also on 19 November 2018 you were requested by the Tribunal to submit a range of relevant documents.

3. The Tribunal has calculated the amount required, according to IMMI 18/010, as being $39,290. You have provided a COE for a Bachelor of Tourism and Hospitality Management which shows the course commenced on 12 November 2018 and is due to finish on 08 November 2019. The total course fee is $22,500, less the amount you have already paid of $4500. The calculation of $39,290 is comprised of annual living costs of 20,290 that’s prescribed in the instrument for an intended period of stay of 12 months or more, plus travel expenses of $1000, plus course fees of $18,000. It should be noted that this amount will gradually reduce, or would gradually reduce down to that $38,000 mark over a period of time.

4. At the hearing on 19 November 2018, you submitted a certificate of balance from NAB for a Mr Gurwinder Singh which showed a balance of $63,445.23 as at 15 November 2018. However, the Tribunal was not satisfied with this document. Mr Gurwinder Singh is the husband of a friend of the applicant who she has only known for a year.

5. The Tribunal requested that you, the applicant, gain a copy of Mr Gurwinder’s account balance for the previous six months. A copy of Mr Gurwinder Singh’s NAB account was submitted to the Tribunal as requested, and has a balance as at 22 October 2018 of $4,426.27.

6. Mr Gurwinder Singh’s account had the following balances from the statements provided: on 22 June, there was a balance of $1641.28. On 22 August 2018, $531.14. And 22 October, $4,426.27. No evidence has been provided to the Tribunal that a substantial deposit of approximately $60.000 was deposited into Mr Gurwinder’s account.

7. The other bank statement that was submitted was for a KS Scaffolding Pty Ltd business everyday account, which is not relevant to this application. This account displayed a large amount of money coming and going on a regular basis for the payment of what appear to be wages.

8. You also submitted receipts for the course you have started on 12 November 2018, which totalled $4500 with an amount of $3000 due on 4 December 2018. At the hearing today, no evidence was provided that this amount has been paid.

9. You submitted your PAYG for the year ending June 2017, where you earnt $27,010, and the year ending 2018 where you earned $28,798, and a range of payslips from Bridgewater Bakehouse in Bendigo. Regular payments are paid into your account, Commonwealth Bank account, from Bridgewater Bakehouse in Bendigo.

10. Your own personal Commonwealth Bank account as of 20 November 2018 shows that you have a debit amount of $1974.56. From the statements submitted, which date back to 21 May 2018, this account had an opening balance of debit $1790.43.

11. Your account indicates that you had a Ms Patricia O’Shea pay into your account on 13 June 2018, $2000, who the Tribunal notes is your landlord. Your account also indicated that

Case Number 1717482  Page 3 of 5

regular amounts have been paid into your account by a Balwinder Dugg in the amounts of $200 and also Vijaya Singh in the amounts of $100.

1. The applicant stated at the hearing that the $2000 from Ms Patricia O’Shea was a loan, but no evidence was provided on how this amount was being paid back.

2. Ms Patricia O’Shea completed a statutory declaration stating that you, the applicant, paid $400 per fortnight that includes utilities, in Epsom, which is a suburb of Bendigo, that you are consistent in paying your rent on time, and that you share a good landlord/tenant relationship. No mention of the $2000 paid into your bank account on 13 June 2018 was mentioned in the statutory declaration.

3. Vijaya Singh completed a statutory declaration stating that you are a good friend and that you partially reside at their residence 1 to 2 days a week for the pay year in St Albans and that you reside in Bendigo for the rest of the week. No mention of the amounts being paid into your bank account was mention in the statutory declaration.

4. Karan Dugg completed a statutory declaration stating that you are good friend and that you partially reside at their residence 1 to 2 days a week for the last year in St Albans and that you reside in Bendigo for the rest of the week. No mention of the amounts being paid into your bank account was mentioned in the statutory declaration

5. A statutory declaration was also completed by Randeep Sharma who is the applicant’s friend. Randeep Sharma husband is Mr Gurwinder Singh, whose bank account statements you have provided the Tribunal. Randeep stated that you are a good friend of mine and we have known each other for one year; that Randeep was living in Bendigo and working as a chef in an Indian Restaurant and that she and her husband fully support you and because you are a friend she sees it as her duty to provide financial support to you.

6. Your brother, Armadeep Singh, completed a statutory declaration stating that he provides you financial support of $400 per week. No independent evidence of this financial support from your brother was provided, and the Tribunal could not locate these payments within your CBA bank account statements provided to the Tribunal. At hearing, it was stated that an amount of $6000 was paid into your bank account by your brother in 2017, and a further amount recently of $1000. No evidence of these amounts was provided to the Tribunal of them being paid into your Commonwealth Bank personal account.

7. You admitted to the Tribunal that you have no access to funds from your home country of India, that your father has passed away and that your mother does not have any financial capacity to support you.

8. The evidence provided to the Tribunal doesn’t meet the requirements of section 6(2) of IMMI 18/010 that you have evidence of financial capacity at the time of this decision.

9. Accordingly, there is no evidence before me that you meet the requirements of having the financial capacity and genuine access to funds.

10. Therefore the Tribunal is not satisfied that at the time of this decision the applicant meets the financial capacity requirements, and accordingly clause 500.214 is not met.

11. 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. For these reasons, I have concluded that the decision under review should be affirmed.

Case Number 1717482  Page 4 of 5

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

2. This decision is made at 10.07 am on 11 December 2018.
   DECISION

3. The Tribunal affirms the decision under review.

   M. Edgoose
   Member

Case Number 1717482  Page 5 of 5