Mazaiwana (Migration)

[2019] AATA 2563

Mazaiwana (Migration) [2019] AATA 2563 (23 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kudzayi McDonald Mazaiwana

CASE NUMBER:  1727479

HOME AFFAIRS REFERENCE(S):           BCC2017/3069536

MEMBER:Meredith Jackson

DATE:23 May 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 23 May 2019 at 2:34pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – funds required – trust account in Zimbabwe in the name of applicant's sister – genuine access to funds – work-related earnings in Australia – bringing cash in Australia – lack of evidence of support claims – 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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 October 2017 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 25 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.

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 that the applicant met the financial requirement for the visa.

4.    On 26 March 2019 the Tribunal invited the applicant to a hearing on 8 May 2019. On 28 April 2019 the applicant’s migration agent requested that the hearing be postponed on the basis she had only recently been appointed and wanted more time to prepare for the hearing. The Tribunal considered but did not grant the request.

5.    The applicant appeared before the Tribunal on 8 May 2019 to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. 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.

The hearing

1. The Tribunal, under section 359AA of the Act, referred the applicant to information about him held in the Provider Registration and International Student Management System (PRISMS) and explained its relevance in that the information in the database might be the reason, or part of the reason to affirm the delegate’s decision.

2. The Tribunal outlined the information in the database, which captures a chronological record of the applicant’s academic history in Australia: his enrolments, commencements, cancellations and finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal referred to the information during the hearing and the applicant was invited to comment on it. The Tribunal asked the applicant if he wished to seek further time to consider it. The applicant said he was prepared to comment on the information immediately after it was read to him and said he understood it and why it was relevant to his case. The Tribunal asked the applicant if the record seemed to be correct and he said it did.

Funds required: The delegate’s decision

1. The delegate’s decision recorded that the applicant had been required to provide evidence of financial capacity of AUD 43,908.38.

The hearing

1. At the hearing, the applicant provided a letter from the Australian Institute of Professional Counsellors Pty Ltd dated 8 May 2019, stating that the applicant is currently enrolled in a Master of Counselling Course at the Institute. The course commenced in July 2018 and is due to be completed in June 2020. The letter stated that total fees for the course were estimated to total AUD 35,700.

2. The applicant told the Tribunal that he intended to study for the summer semester and should therefore finish the course by January 2020 as he had five subjects left and planned to complete them in the summer semester.

3. The Tribunal said the applicant’s intentions on length of stay were relevant to the decision because the financial capacity calculation depended on whether he was intending to stay for more or less than 12 months; and the length of time of the stay would alter the amount needed to be demonstrated. 

4. In order to establish the length of the applicant’s intended stay in Australia, the Tribunal asked the applicant about his intention after his current course is completed, and he responded: “I intend to look for a job and start my career”. The Tribunal asked whether this would be in Australia, to which the applicant responded: “If possible, yes.” The Tribunal asked whether he had an intention to return home when he finished studying. The applicant responded that he did have an intention to return home, but only after he got necessary experience from Australia, stating that where he was from in Zimbabwe, counselling was only just opening up as a profession.

5. The Tribunal mentioned that the applicant was meant to be a genuine temporary entrant and said it may have a concern that the applicant was not a temporary entrant, noting that he had been in Australia since 2007. The applicant stated that he planned to return home in the long run, but he needed experience and there was no better way to get it than to work in Australia.

6. The Tribunal asked why, if counselling was a new field in Zimbabwe, he needed additional experience, given he would have an Australian degree. The applicant responded that he could not get enough work experience in Australia while studying, he needed to work after his course to see how counselling was run here.

7. The applicant said he did not have an intention to apply for any other visas. He was just saying what he would like to happen “in a perfect world”.

8. The Tribunal again noted that the applicant had initially stated he might like to stay on and work and now he was stating something else, and this might cause the Tribunal to consider he was not a genuine temporary entrant, which was a consideration for the Tribunal.

9. The applicant responded that he was not talking about getting a job so much as talking about the counselling hours he would do that were built into the final subject of his course. The Tribunal noted that the applicant had said one thing earlier in the hearing, that he wanted to look for a job and start his career, but now he seemed to be making a different claim and the Tribunal asked why there was an apparent discrepancy. The applicant responded that when he answered the question he was not thinking about what he wanted to do, he was just giving the Tribunal a basic answer to what he wanted to do with his life. He said anyone would want to stay in Australia, and he would want to stay here, but legally, through a visa.

10. The Tribunal adjourned the hearing to consider the applicant’s financial and enrolment circumstances and to calculate the fees required to be demonstrated.

Funds required

1. Following the adjournment, the Tribunal told the applicant it would need further evidence in order to make a decision in his case, and gave him until 14 July to make any submissions regarding his financial capacity, enrolment and access to funds. The Tribunal stated that this would help establish the amount of funds he had available, and whether he had genuine access to those funds.

2. The Tribunal then said it had calculated the likely amount needed to be shown for financial capacity at AUD 29,290, comprising AUD 20,290 for living expenses, AUD 1,000 for travel and tuition fees of approximately AUD 8,000, an amount the applicant estimated was outstanding. The Tribunal said however the amount of outstanding fees in the calculation would be affected by what was recorded on a relevant COE.  The Tribunal said if the applicant had paid any portion of the fees, a COE would show that or he could provide evidence of such payment to the Tribunal.

3. The Tribunal noted that the applicant had provided a letter from a law firm in Zimbabwe dated 15 April 2019 concerning a Trust account in Zimbabwe in the name of his sister,  to the value of USD 50,000. The applicant stated that his sister was the administrator of the trust; and that the funds had been left to the two of them after their parents had passed away. The applicant said his sister was his financial sponsor because she held the power of attorney for the trust.

4. The Tribunal asked how the applicant paid his expenses in Australia. He said he earned some money by working, but the majority of his funds came from home. He had recently gone to Zimbabwe and returned with USD 12,000 in cash, which he declared on entry.

5. The Tribunal stated that it needed to be satisfied that sufficient funds were available to him for the duration of his studies and that he had genuine access to the funds. To settle issues in relation to his enrolment and outstanding fees, the Tribunal could be informed by his enrolment details and fee descriptions on a COE. The Tribunal said if the fees were more than AUD 8,000 as suggested, then this would revise the amount required to be shown.

Documentary submissions

1. The applicant provided an affidavit dated 10 May 2019 from his sister in Zimbabwe, stating in summary that she is the applicant’s sponsor and the applicant has, through her power of attorney, ‘unprecedented’ access to a trust fund of USD 50,000 (approximately AUD 72,308). The Tribunal accepts the reference is likely to imply the applicant has unrestricted access to the funds.

2. The Tribunal has also taken into account a statement dated 15 April 2019 to the effect that a sum of USD 50,000 is held in a trust account of Dube-Band Nzarayepenga & Partners, a law firm in Harare, Zimbabwe; and a letter from CABS Bank in Zimbabwe which records that a transactional account in the name of Kundayi E Mazaiwana is held at the bank and it had a balance at 27 October 2017 of $52,864.33 (currency is not specified).

3. On 14 May 2019 the applicant submitted to the Tribunal a copy of a letter from the Australian Institute of Professional Counsellors Pty Ltd, stating that he is currently enrolled in a Master of Counselling course due to be completed in June 2020. It stated that estimated tuition fees for the course were AUD 35,700.

4. The applicant did not provide a COE for his course with his submissions.

5. The applicant submitted two tax invoices from the Institute, recording fee payments by him in July 2018 and March 2019 totalling AUD 12,600.

Conclusions

1. The applicant has provided the Tribunal limited information concerning his enrolment. As he did not provide a COE in his post-hearing submission the Tribunal has relied on a letter from his provider submitted at the hearing. The letter gives a broad outline of when and how the applicant might complete his enrolment, and its fees. The Tribunal accepts that the applicant is currently enrolled at the Australian Institute of Professional Counsellors Pty Ltd to study a Master of Counselling and that fees for the course are estimated at AUD 35,700.

2. Based on the information described above regarding his enrolment, and the requirements specified in the Instrument, the Tribunal calculates that the total amount of funds required to be shown by the applicant for 12 months from the date of the decision is AUD 42,108. This is made up of AUD 20,290 for living expenses, AUD 1,000 for travel and AUD 20,818 in pro-rata tuition fees for the first 12 months of his study. The latter figure takes into account AUD 35,700 in fees and that the applicant has paid AUD 12,600 of that amount. The Tribunal has considered the applicant’s claim that he intends to complete his course in the summer semester to January, and this would shorten the period to less than 12 months, however is not satisfied that he will complete early and therefore it considers June 2020, the timing nominated by his education provider, as the most likely completion date for the purposes of calculating pro-rata outstanding fees.

3. The Tribunal has considered the applicant’s submissions in relation to his financial capacity and whether sufficient funds are available to meet the amount described in paragraph 35.

4. The applicant claims that he relies on funds from home for most of his expenses in Australia, beyond his work-related earnings in Australia. The Tribunal asked about the method of transfer of funds to Australia, and the applicant responded that he brings cash to Australia when he travels back from his home country. The Tribunal has does not have before it supporting evidence that he has done so. The applicant has not provided evidence as to whether or where such cash has been deposited or administered once in Australia. He has provided a letter from the Commonwealth Bank concerning an account in his name in Australia, which on 27 October 2017 recorded a credit balance of AUD 10,156.09. The applicant has stated that he earns some money working in Australia, but has not provided payslips, tax returns or other evidence of his earnings and how he meets his expenses.

5. The Tribunal gave the applicant additional time to submit any evidence to support his claims to financial capacity. The Tribunal has considered the affidavit from his sister, the letter from the law firm in Zimbabwe and an October 2017 bank statement from Zimbabwe. It has not taken into account the CABS bank statement that records funds of $52 864 (currency unspecified) in a transactional account in the name of the applicant’s sister. It was dated 27 October 2017, and it does not align with the applicant’s submission, and that of his sister, that he accesses funds from a trust account.  The Tribunal however does accept the law firm’s letter that states a USD 50,000 trust account exists in the name of the applicant’s sister, and accepts the affidavit from the applicant’s sister that she is the applicant’s sponsor.

6. The Tribunal on balance is satisfied the applicant has provided sufficient evidence in relation to his financial capacity and satisfies the financial requirement as set out.

Will the applicant have genuine access to the funds?

1. To meet cl.500.214(1), the Tribunal must also be satisfied that the applicant will have genuine access to the funds referred to above.

2. The applicant claims he has access to funds through his sister, who in turn has submitted that the funds are available and that the applicant has access to them.

3. The Tribunal has considered the applicant’s claims he funds his stay in Australia partly by working, but principally by bringing cash funds into the country in order to pay his tuition fees and supplement his other expenses. The Tribunal asked the applicant to provide evidence to support the claims, and gave him additional time to submit evidence that would establish that funds have been given to him in the past. The applicant’s submission in this regard was simply evidence that fees had been paid to his education provider. These are marked on the invoices as paid by Mastercard. The applicant has not provided supporting evidence of a Mastercard account in his name, or of any transaction account in his name at an Australian bank with amounts deposited. The applicant claims he declared the most recent amount of cash he brought to Australia on entry; however the Tribunal is not satisfied on the evidence before it that the cash came to Australia in this manner. For these reasons, the Tribunal does not consider the payment of fees to the institution, on their own, to be evidence that the applicant has genuine access to funds in the trust account in Zimbabwe, and therefore the Tribunal is not satisfied the applicant will have genuine access to the funds for the remainder of his stay in Australia.

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

5. On the basis of the above, the Tribunal is not satisfied that the applicant meets cl.500.214(3).

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

7. 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.