Malhotra (Migration)

[2019] AATA 2786

Malhotra (Migration) [2019] AATA 2786 (17 April 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Fawad Ahmad Malhotra

CASE NUMBER:  1903722

DIBP REFERENCE(S):  BCC2015/3907788

MEMBER:  Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:          17 April 2019 at 1:03 pm (VIC time)

DATE OF WRITTEN RECORD:                20 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the Applicant meets the criteria contained in clause 5A508 of Schedule 5A of the Migration Regulations 1994 (Cth) (as they applied at the time the Applicant made his original application)

Statement made on 20 May 2019 at 2:08pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – sponsored by father – evidence of funds – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 5A, cl 5A508

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 31 January 2019 to refuse to grant the visa Applicant a Student (Temporary) (Class TU) Subclass 573 visa under the Migration Act 1958 (the Act).

2. At the hearing on 17 April 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 the decision that is delivered orally and the reasons for that decision in an application for review brought by the Applicant, Mr Malhotra, from a decision of the delegate of the Minister of the Department of Home Affairs. The application on review relates to an application for a Subclass 573 visa, which the Applicant originally made on 16 December 2015.

4. This particular application has some history. These history is outlined in the decision of the delegate of the Minister, which was issued on 31 January 2019 to the Applicant which are referred to for convenience. The Applicant originally applied for the visa on 16 December 2015. On 31 December 2015, the application was refused by the Minister’s delegate on the basis that the Applicant did not satisfy the requirements of public interest criterion 4013 and the applicant did not satisfy clause 573.224(a) of the Regulations (as they then were).

5. The Applicant subsequently applied for a review of that decision with the Administrative Appeals Tribunal. On 1 November 2018, the Tribunal remitted the application back to the Department for reconsideration with the direction that the Applicant met public interest criterion 4013 for the purposes of clause 573.224(a) of Schedule 2 of the Regulations. The delegate, accordingly, then proceeded to determine the visa application on the basis that that public interest criterion was satisfied. Of course, there are other considerations that had to be satisfied in accordance with the regulatory criteria. It is one of those further criteria which the delegate, upon the matter being remitted, was not satisfied. The Applicant has again sought a review of that quite distinct aspect of the decision-making process.

6. The issue on this occasion related to the obligation of the Applicant to provide evidence that he had sufficient financial capacity to sustain himself while studying in Australia for the purposes of the visa application. To that end, on 18 December 2018, the Department sent a letter to the Applicant, via his migration agent, requesting that he provide evidence, in documented form, relating to his financial capacity, specifically evidence of funds that come to AUD $24,130. He was given 28 days. The Applicant’s migration agent requested further time. The Department refused that request, but practically allowed extra time in any event as a decision was not immediately made. However, the further information requested was not provided by the Applicant.

7. On that basis, the Minister’s delegate, not having any information pertaining to the Applicant’s financial capacity, understandably refused the application for a visa. Specifically, the delegate found that he did not meet the financial requirements in Schedule 5A of the regulations, identifiable more specifically as clause 5A508. That is the finding that is now on review. On that basis, the Tribunal is confining this review to the issue of whether the delegate’s finding is wrong in that respect only. The Applicant needs to show the Tribunal that he does indeed have financial capacity approximating AUD $25,000, according to the Tribunal’s calculation.

   Case Number 1903722  Page 2 of 3

1. The Applicant has provided satisfactory material demonstrating that he is financially provided for by his father for the purposes of his studies, in excess of AUD $29,000. Or more precisely, the Tribunal is satisfied that the Applicant’s father has committed to supporting him with money in his bank account amounting to approximately $3 million Pakistani Rupees, which currently converts on Australian dollars to $29,385.36 on 17 April 2019. The Tribunal has considered all the documentation pertaining to that money, including sighting evidence of that amount of money in the Applicant father’s bank account, which was recently transferred as a consequence of the father of the Applicant selling a parcel of property in Pakistan.

2. The Tribunal has looked at the property documentation, as well as a statutory declaration of Pakistani origin indicating by the hand, or the apparent hand, of the signature of the Applicant’s father that he confirms the amount of $3 million Pakistani Rupees is in his United bank account [number], stating that it “is for the education of my son, Fawad Ahmad Malhotra, studying in Australia” and that was dated 10 April 2019. All of this is consistent with the copies of the bank statements that have been provided by the Applicant earlier, last week, when this Tribunal first convened for this hearing and also, as verified by the statutory declaration provided by the Applicant today dated 10 April 2019 by the Applicant himself.

3. In all of these circumstances, the Tribunal is satisfied that the Applicant meets the specific criteria under clause 5A508 of the regulations as they then applied. The time now is 1.05 pm. In case 1903722, the Tribunal remits the application on review for reconsideration, with a direction that the Applicant meets the financial requirements of Schedule 5A of the regulations as they have been applied and specifically, he meets the requirement under clause 5A508. That concludes the hearing.

   DECISION

4. The Tribunal remits the decision under review with the direction that the Applicant meets clause 5A508 of Schedule 5A of the Regulations (as they applied at the time the Applicant made his original application).

   Dr Jason Harkess
   Member

Case Number 1903722  Page 3 of 3