Pandit (Migration)

[2020] AATA 2962

Pandit (Migration) [2020] AATA 2962 (14 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yuvraj Pandit

CASE NUMBER:  1812390

HOME AFFAIRS REFERENCE(S):          BCC2018/1142004

MEMBER:Gabrielle Cullen

DATE:14 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.214 of Schedule 2 to the Regulations.

Statement made on 14 May 2020 at 5:42pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – genuine access to funds – financial support from the applicant’s parents – evidence of bank deposits – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 Home Affairs on 23 April 2018 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 9 March 2018. 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. On 23 April 2018 the delegate 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 applicant had not provided information or documentation evidencing they have genuine access to sufficient funds available to meet the costs and expenses during his intended stay in Australia.

4. The applicant has provided the following relevant evidence to support his claim to meet the requirements as to financial capacity and genuine access to funds.

   ·Current COE indicating he is enrolled in a Bachelor of Business (Professional Accounting) at Elite Education Institute from 2 March 2020 to 3 July 2020 at a cost of $4,000. This is an extension COE from the same course studied from 5 November 2018 to 28 February 2020. Information from the PRISMS record confirms his enrolment in this course. Information provided from the education provider indicates as at 14 April 2020 he has completed 91.67% of the Bachelor of Business (Professional Accounting).

   ·Letter from the applicant’s education provider dated 30 April 2020 indicating the applicant has no outstanding fees up to the March 2020 intake.

   ·Affidavit from Dwarka Prasad claiming he is the applicant’s father and affidavit from Saroj Rani claiming she is the applicant’s mother.

   ·Letter of support from Dwarka Prasad Pandit and Saroj Rani Pandit, claiming they are the father and mother of the applicant and they undertake responsibility and have sufficient funds to cover the applicant’s living and tuition fees during his study in Australia.

   ·Applicant’s Indian passport indicating that his father is Dwarka Prasad and mother Saroj.

   ·Indian passport of the applicant’s mother, Saroj Rami indicating she is married to Dwarka Prasad Pandit.

   ·Indian passport of the applicant’s father, Dwarka Prasad indicating he is married to Saroj Rani Pandit.

   ·Letters from ANZ Bank confirming transactions from Dwarka Prasad Pandit to the applicant of $4,928 on 31 January 2020, $2,905 on 13 February 2019, $2,300 on 19 September 2018, and $6,332 on 28 May 2018.

   ·Letter from the ANZ dated 30 April 2020 indicating the applicant holds $9,048 in his account.

   ·Indian Income Tax Return Acknowledgement  in the name of Dwarka Prasad Pandit indicating a gross income of 353231INR equivalent to $7,279 (xe.com) dated 21 June 2019, Indian Income Tax Return Verification of Dwarka Prasad Pandit indicating a gross total income of 332786 INR as at 21 June 2018 equivalent to $6,862 (xe.com), Indian Income Tax Return Verification of Dwarka Prasad Pandit indicating a gross total income of 298400INR as at 27 May 2017 equivalent to $6,149 (xe.com)

   ·2019/2010 Income Tax return Verification of Saroj Rani Pandit indicating a gross income of 295500INR, 2018/2019 Income Tax return Verification of Saroj Rani Pandit indicating a gross income of 290400INR dated 21 June 2018

   ·Evidence the applicant holds OSCH with NIB to 23 July 2021.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 cl.500.214.

7. 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.

8. In the present case, the Minister has not expressly required the applicant to give evidence of financial capacity in accordance with cl.500.214(3). Notwithstanding, the first named applicant has provided evidence of financial capacity in accordance with IMMI 19/198.

   Has the applicant provided evidence of financial capacity in accordance with the instrument?

9. The requirements for evidence of financial capacity for cl.500.214(3) are set out in IMMI 19/198.

10. As to the costs associated with studying the Bachelor of Business (Professional Accounting) for the first 12 months from the expected date of the grant of the visa the Tribunal has assessed the amount to be as follows.

    ·the full tuition fee to complete the Bachelor of Business from 2 March 2020 to 3 July 2020 is $4,000. The evidence indicates the applicant has paid all fees up to March 2020. The Tribunal calculates the remaining fees to be paid to be $4,000.

    ·travel expenses being a one-way ticket for the applicant to return to India on completion of the course which is approximately equivalent to the sum of $1,000.

    ·living costs specified in IMMI 19/198 are $21,041 for the applicant for the 12-month period. The applicant is expected to complete the course on 3 July 2020 and giving him a month to depart to 3 August 2020, living costs from the date of the expected visa grant being 3 June 2020 will be required for 2 months. As living costs are $21,041 for 12 months, the applicant’s living costs for 2 months are $3,507.

11. In accordance with IMMI 19/198, the Tribunal finds that the applicant’s total course fees, living costs and travel costs for the 12-month period are as follows:

    Course fees $4,000

    Living costs  $3,507

    Travel costs  $1,000

    Total  $7,507

12. If requested the applicant would be required to give evidence of funds sufficient to meet expenses totalling $7,507.

13. The applicant has provided evidence of a money deposits in his name held with the ANZ in the sum of $9,048. The total available is $9,048 and is more than the required amount of $7,507.

14. All of the funds required by an applicant to meet their relevant costs and expenses must also be in the form that satisfies section 10 of IMMI 19/198. This specifies a limited range of evidence of financial capacity which is required, namely a money deposit with a financial institution, a loan with a financial institution, government loan, financial support or scholarship. The applicant has provided evidence that the funds are held in a money deposit with the ANZ. The Tribunal accepts the applicant has provided evidence of funds that meets the requirements of Section 10 IMMI 19/198.

15. Therefore, on the basis of the evidence before it 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?

16. The amount of $9,048 held by the applicant in his ANZ account exceeds the required amount of $7,507.

17. For these reasons, the Tribunal is satisfied that the applicant meets cl.500.214(2).

    Will the applicant have genuine access to the funds?

18. 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.

19. The applicant has provided evidence that he holds funds in his name of $9,048 in his ANZ account to meet the costs and expenses for him to study and live in Australia. The Tribunal accepts as the funds are in his name, he will have access to them. The applicant has also provided evidence that his mother and father are supporting him and have provided several transfers to his account from 2018 to 2020. As the applicant only has 2 months of study left to complete his degree, he now holds all the required funds in his account.

20. The Tribunal is therefore satisfied the applicant will have genuine access to the funds and that cl.500.214(1) is met.

21. Accordingly, the Tribunal is satisfied that the applicant meets cl.500.214.

22. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

23. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.214 of Schedule 2 to the Regulations.

    Gabrielle Cullen
    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.