Mohammed (Migration)

Mohammed (Migration) [2020] AATA 5536 (22 October 2020)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Zahid Mohammed
Mrs Zaheen Fatima Syeda
Master Marwan Mohammed
Master Arhaan Mohammed
CASE NUMBER:  1813181
DIBP REFERENCE(S):  BCC2018/1140147
MEMBER:Mark Bishop
DATE OF DECISION:  15 October 2020
DATE CORRIGENDUM
SIGNED:19 January 2021
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

Decision date on Decision record page should be read as “22 October 2020” not “15 October 2020.”
Statement made on 19 January 2021 at 10:04am
Mark Bishop
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Zahid Mohammed
Mrs Zaheen Fatima Syeda
Master Marwan Mohammed
Master Arhaan Mohammed
CASE NUMBER:  1813181
HOME AFFAIRS REFERENCE(S):          BCC2018/1140147
MEMBER:Mark Bishop
DATE:15 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the first named applicant and other named secondary applicants, respectively, meet the following criteria for a Subclass 500 (Student) visa:
·cl.500.214 of Schedule 2 to the Regulations.
·Cl.500.311 of Schedule 2 to the Regulations.

Statement made on 22 October 2020 at 11:02am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – genuine access to funds – current enrolment – bank statements provided – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 500.211, 500.214, 500.311
CASES
Kaur v MICMSMA [2020] FCCA 2606
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 April 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 9 March 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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.
The delegate in this case refused to grant the visas 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 applicant failed to provide evidence of Genuine Access to Funds (GAF).
The applicant appeared before the Tribunal on 15 October 2020 to give evidence and present arguments. The secondary applicant declined to give evidence to the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 GAF.
Genuine access to funds (cl.500.214)
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.
In the present case, the Minister has required the applicant to give evidence of financial capacity in accordance with cl.500.214(3).
The requirements for evidence of financial capacity for cl.500.214(3) are set out in LIN 19/198, which is attached to this decision.
The delegate made a finding the applicant did not provide sufficient evidence as to GAF to satisfy cl.500.214.
The Tribunal is required to make a time of decision finding. This means an applicant is required to provide current information at the time of decision. An applicant is required to provide current information to the Tribunal to satisfy GAF as set out in cl.500.214.
On 30 September 2020 the Tribunal wrote to the applicant and invited the applicant to attend a hearing. The Tribunal advised the applicant “…Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English or accompanied by a translation from a qualified translator”.
The applicant failed to comply with this request. He provided a GTE submission to the Tribunal that addressed prior visas in 2016 and 2018 (refused), episodes of epilepsy in February 2018, illness in his family, stress in his marriage, inattention to his studies, re-enrolment and his desire to finish his degree;
Attached to the submission outlined in paragraph 13 above he attached a range of documentation as follows:
·A Statutory Declaration dated 12 October 2020 outlining detail referred to above in paragraph 13;
·Identity documents for himself and his family;
·Psychological report dated 8 October 2020 advising he completed 6 VET courses in the period 2009 until 2014 in Business, Accounting, Human Resources and Management, was currently enrolled in an Advanced Diploma of leadership and Management that commenced in September 2020, is resident in Australia as the holder of a Bridging visa, applicant suffering of an epileptic episode in February 2018, medication, applicant assertion that he needed 24 hour supervision for 6 months, secondary applicant suffering of rheumatoid arthritis in 2018 and 2019, education provider cancellation of his COE due to non-attendance, relationship issues related to illness, lack of attention to his academic studies, his desire for a compassionate response so that he can finish his Advanced diploma by September 2022, no current psychological impediment from either a cognitive or emotional perspective, stability in his relationship, his medical condition is stable, the applicant is seeking a compassionate response from the Administrative Appeals Tribunal and adverse symptoms from the taking of medication have dissipated. See also paragraph 19 below;
·Medical certificate dated 5 October 2020 advising the applicant suffered from grandma epilepsy in 2018 and that his condition would have taken 6 months to get the idea dose of a drug and in his period would have missed his education;
·Discharge certificate for his son after a visit to a general clinic for one day on 16 July 2019;
·COE in an Advanced Diploma of Leadership and Management, created 29 July 2020, showing course start date of 7 September 2020 and course finish date of 4 September 2022 with tuition fees of $12,500 for the two-year course with $1,500 paid. The Tribunal calculates outstanding tuition fees for the first twelve months of the course as $5,000;
·GTE Statement that addresses considerations under Ministerial Direction number 69. The Tribunal notes the review application is a GAF matter and not a GTE matter;
·Health coverage verification letter;
·Copy of a Bachelor of Commerce Graduation Certificate conferred June 2008;
·Series of VET Graduation Certificates at Certificate, Diploma and Advanced Diploma from the period 2009 until 2014 in Business, Human Resources, Management and Accounting;
·Pictures of his son with a sore lip;
The Tribunal requested the applicant provide the following documents at least 7 days prior to the hearing:
·A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.
·Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.
Either:
·Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument.

OR
·Evidence of the annual income of your parents/spouse/de facto partner and that you have genuine access to those funds. Please note: any access to funds information that is from outside of Australia needs to be converted into Australian Dollars (AUD) using the following link: A copy of the conversion needs to be added to any submission with the conversion date.
The Tribunal is of the view the applicant was provided with adequate written notice of the need to provide “Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument”
In addition, on 1 September 2020 the Tribunal provided a copy of LIN 19/198 Financial Capacity Instrument to the applicant. This instrument in s.6 (2) outlines the detail an applicant is required to provide to comply with the instrument and hence satisfy cl.500.214 of Schedule 2 to the Migration Regulations. The Tribunal is of the view the applicant was provided with adequate written notice of the type of information required to be provided to the Tribunal to satisfy LIN 19/198.
As outlined above the current review application is not a GTE matter. It is a GAF matter. The relevant considerations are set out in cl.500.214 of the Regulations. A copy of cl.500. 214 was set out in the decision record. The applicant provided a copy of the decision record to the Tribunal. Cl.500.214 does not contain any reference to compassionate or compelling circumstances (as do many other sections of the Migration Regulations such as PIC 4020 reviews conducted under cl.500.217). Relevant materials required to be provided to the Tribunal are set out in LIN 19/198 (copy attached). A copy of LIN 19/198 was provided to the applicant on 30 September 2020. In addition as outlined in paragraph 15 above on 30 September 2020 the Tribunal in writing advised the applicant of required detail under cl.500.214. The applicant provide a copy of a current COE. The Tribunal gives this COE weight. The applicant did not provide any other relevant material going to GAF to the Tribunal.
In a submission provided by the applicant and prepared by his psychologist the applicant advised he was seeking a “compassionate response from the Administrative Appeals Tribunal”. The general complaint of “compelling and compassionate circumstances” misunderstands the nature of the Tribunal’s review function and the requirements of cl.500.214. The Tribunal is not required to consider whether there were “compassionate circumstances” to justify the grant of the visa. The Tribunal is required to be satisfied that the applicant satisfies the GAF requirements set out in cl.500.214. ( See para 23 in Kaur v MICMSMA [2020] FCCA 2606: Kaur[2020]FCCA2606.doc per Driver J.)There is no “any other relevant matters” requirement in cl.500.214 as set out in Ministerial Direction number 69 and considered under cl.500.212 (the GTE requirements).
In evidence to the Tribunal the applicant advised he came to Australia in 2009, had been resident in Australia since that time, completed a number of VET courses as outlined above in the years 2009 until 2014, enrolled in and did not complete a MPA and a MBA in the years 2015 until 2018, completed 5 subjects in his MPA and 4 subjects in his MBA, did not enrol in any further courses from 2019, was ill for a period of time as outlined above, recently enrolled in an Advanced Diploma of Leadership and Management due for completion in September 2022, was employed as a counter attendant in BP, earned approximately $300 per week, his spouse did not work in Australia and he received remittances from his father in India and described his family in India as wealthy.
The applicant also advised the Tribunal he was aware the review application was not a GTE matter and he had not as yet provided any written material that addressed GAF. He advised the Tribunal he expected to receive the material in the immediate future.
The Tribunal explained in detail to the applicant the type of material that was required to satisfy GAF and asked the applicant to write it down. The Tribunal outlined it needed to see a statement of support that addressed GAF from his sponsor and a bank statement and transaction record that showed the balance and history of the deposits in the account. The applicant read back to the Tribunal the full detail of what he had written down. The Tribunal gave the applicant until 12 noon 22 October 2020 to provide the material. The applicant advised he understood. Notwithstanding the discussion in paragraphs 18 to 20 above the Tribunal considers this to be a “compassionate response” to a request from the applicant (see paragraph 19 above). The Tribunal further advised the applicant that there would not be a further hearing and that immediately after 12 noon 22 October 2020 the Tribunal would issue a decision.
The applicant is required to provide evidence of GAF amounting to $60,299 calculated as outstanding tuition fees of $5,000 (as per COE), applicant cost of living $21,041, spouse cost of living of $7,362, child cost of living of $3,152( Master Marwan Mohammed), child cost of living of $3.152 (Master Arhaan Mohammed), child education costs of $8,296 ( Master Marwan Mohammed), child education costs of $8,296 (Master Arhaan Mohammed) and 4 airfares of $1,000 each.
On 22 October 2020 the applicant provided the following material to the Tribunal:
·Bank Statement dated 16 October 2020 from the HDFC bank in the name of the applicant’s father showing a balance of INR 20,00,000 (at time of decision approximately AUD$38,260);
·Bank Statement and transaction record dated 21 October 2020 from the Karur VYSYA Bank in the name of Mr Mohd Saleem showing a balance of INR 15,06,631(at time of decision approximately AUD$28,821);
·Bank Statement and transaction record dated 21 October 2020 from the Karur VYSYA Bank in the name of Mrs Atiya Shaheen showing a balance of INR 8,839;
·Affidavit of Support dated 20 October 2020 in the name of the applicant’s parents addressing GAF;
The applicant provided proof of GAF to an amount exceeding $60,299. There is evidence before the Tribunal that the applicant satisfies LIN 19/198 (see paragraph 17 above in addition).
On the basis of the above, the Tribunal is satisfied that the applicant meets cl.500.214(3).
Are there sufficient funds available to meet costs and expenses while the applicant holds the visa?
See above.
For these reasons, the Tribunal is satisfied that the applicant meets cl.500.214(2).
Will the applicant have genuine access to the funds?
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.
See above
As the Tribunal is satisfied the applicant will have genuine access to the funds, cl.500.214(1) is met.
Conclusion on cl.500.214
Accordingly, the Tribunal is satisfied that the applicant meets cl.500.214.
Secondary Applicants
The secondary applicants are members of the family unit of the applicant. They are members of the family unit of a person who holds a student visa and hence satisfy cl.t00.311 of the Regulations.
DECISION
The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant and other named secondary applicants, respectively, meet the following criteria for a Subclass 500 (Student) visa:
·cl.500.214 of Schedule 2 to the Regulations
·cl.500.311 of Schedule 2 to the Regulations
Mark Bishop
Member
Attachment – LIN 19/198 – Financial capacity instrument (extract)
6 Subclause 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 subsections (2), (3), (4), (5) or (6).
Note: For primary applicant, see section 4 of Part 1 to 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 – AUD21,041 (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 beginning at one of the following commencement periods and ending on the final day of the applicant’s final course of study:
(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.
(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 - AUD7,362 and
(B)for a dependent child - AUD3,152; 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 - AUD8,296 (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 to 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 AUD62,222; or
(ii)if there is a secondary applicant – at least AUD72,592.
(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.
7 Subclause 500 (Student) visa—secondary applicants
(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 AUD72,592.
(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.
8 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 AUD72,592.
(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.
…
10 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.
11 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.

[2020] AATA 5536

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