Puri (Migration)

[2023] AATA 1837

Puri (Migration) [2023] AATA 1837 (8 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Alisha Puri

CASE NUMBER:  2209620

Home Affairs REFERENCE(S):               BCC2015/2524736

MEMBER:Penelope Hunter

DATE:8 March 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.

Statement made on 08 March 2023 at 2:17pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Federal Circuit and Family Court remittal – genuine student – financial capacity – bank loan now matured – funds from a business source – multiple hearing postponements – enrolment in a registered course – decision under review affirmed          

LEGISLATION

Administrative Appeals Tribunal Act 1975
Migration Act 1958, ss 5A, 116, 359
Migration Regulations 1994, Schedule 2 cls 572.211, 572.223, 573.223, 573.231; Schedule 5A; rr 1.03, 1.40, 1.42

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 26 May 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 August 2015. At the time of lodgement, Class TU contained a number of subclasses. With limited exceptions not relevant to this case, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which he or she is enrolled or has an offer of enrolment as his or her principal course, and the corresponding subclass for which that type of course has been specified by the Minister under reg 1.40A of the Migration Regulations 1994 (Cth) (the Regulations).

3. In the present case, the delegate assessed the applicant against the criteria for a Subclass 573 visa on the basis of enrolment in Bachelor of Business (Accounting). The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl 573.223 of Schedule 2 to the Regulations.

4. The applicant first appeared before the Tribunal at a hearing on 16 March 2017, and on that date the Tribunal, differently constituted affirmed the decision under review.

5. The applicant appealed the matter to the Federal Circuit and Family Court of Australia and on 13 May 2022 orders were made remitting the matter back to the Tribunal for reconsideration.

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

   INFORMATION AND EVIDENCE BEFORE THE TRIBUNAL

   Department Application

7. At the time of her visa application the applicant intended to undertake a course of study in a Bachelor of Business (Accounting) at the Higher Education Level.

8. The delegate records in their decision record, a copy of which the applicant has submitted to the Tribunal, that at the time of application that there was insufficient information provided by the applicant that she met the requirements of Schedule 5A of the Regulations. The Department then requested further information from the applicant on 2 September 2015.

9. The applicant submitted to the Department evidence of her former studies with the Holmsglen Institute, an IELTS test taker score report for a test undertaken on 28 April 2012, a certificate under s 204 of the Income-Tax Act 1961 for Gurpreet Singh Puri and a statement from a Punjab National Bank account ending in 8092 for Maninder Kaur Puri. 

10. In their decision the delegate noted that the applicant provided in response a number of financial documents being income tax assessment and a bank statement for her mother. The delegate found that these only demonstrated that her mother had a money deposit in an account to what was then the equivalent of AUD$3,514. Substantially less than the requested amount which at the time was AUD$41,944.

    Tribunal Application

11. The Tribunal received an application for review from the applicant on 8 June 2016.

12. On 15 March 2017, the applicant provided the Tribunal with submission which relevantly included:

    i.A Confirmation of Enrolment for the application (CoE) in a Bachelor of Accounting, at Stotts College, with course dates from 16 November 2015 to 30 June 2018, total tuition fee $45,000.

    ii.Statement of results from Stotts College dated 2 February 2017.

    iii.Letter of confirmation of enrolment from Stott’s College dated 14 March 2017, and receipts for the payment of fees. 

    iv.Transcripts of the applicant’s previous studies in a Certificate III in Accounts Administration, Certificate IV in Accounting, Diploma of Accounting from Holmesglen Institute.

    v.A transcript of the applicant’s studies in India.

    vi.An IELTS test taker score report for test taken on 12 September 2015.

    vii.Evidence of overseas student health insurance.

    viii.The affidavit of support, income tax returns of Maninder Kaur Puri for the 2014, 2015 and 2016 financial years.

    ix.Punjab national Bank account statement and personal loan documents of Maninder Kaur Puri for account ending in 8092.

    x.Provident Fund details of Maninder Kaur Puri.

    xi.Affidavit of support, income tax returns, gold loan documents and Kotak Mahindra Bank account statement of Jasmine Babbar.

13. The applicant appeared at a hearing before the Tribunal on 16 March 2017 to give evidence and present arguments. The applicant was represented in relation the application and her representative also appeared at the hearing. On 16 March 2017, the Tribunal affirmed the decision under review.

14. On 10 April 2017, the applicant appealed decision of the Tribunal. On 13 May 2022 the Family Court of Australia and Federal Circuit Court made orders that the decision of the Tribunal of 16 March 2017 be quashed and a writ of mandamus be directed to the Tribunal requiring it, as differently constituted, to determine the applicant’s application according to the law.

15. On 22 November 2022, the Tribunal wrote to the applicant and invited her to attend a hearing by MS Teams video to give evidence and present arguments on 9 December 2022. The applicant was further invited to provide any documents and material that she intended to rely upon in her case by 2 December 2022.

16. On 28 November 2022, the applicant returned to the Tribunal a Hearing Response form and indicated her availability to attend a hearing on 9 December 2022.As part of this response the applicant requested an in-person hearing, citing a change in personal circumstances and the belief that an in-person hearing would enable her to present evidence to the Tribunal in a more efficient manner.

17. The Tribunal considered the request, and the applicant was advised that the Tribunal could accommodate an in person hearing in Sydney at the member’s location. The applicant did not accept this offer. The applicant had not demonstrated that she would be disadvantaged by presenting her case via video and the Tribunal considered that it was reasonable to proceed via MS Teams video. The Tribunal also had regard to the orders of the Federal Circuit and Family Court of 13 May 2022 that the matter be determined by the Tribunal differently constituted. Additionally, regard was had to the Tribunal’s objective as set out in the Administrative Appeals Tribunal Act 1975. It was considered that a hearing by video was accessible to the applicant and was proportionate to the importance and complexity of the matter. It was also consistent with objective of providing a mechanism of review that is just, fair, economical and quick, and the further delay to the application were it not to proceed via video.

18. On 9 December 2022, the applicant submitted a medical certificate dated 9 December 2022, advising that she was not medically fit to attend work from Friday 9 December 2022 to Sunday 11 December 2022, and requested that the hearing be rescheduled.

19. The Tribunal rescheduled the hearing, and on 9 December 2022, the applicant was invited to attend a further hearing via MS Teams video to give evidence and present arguments on 12 December 2022 at 1:00pm.

20. On 12 December 2022, the Tribunal received a further request from the applicant for a postponement of the hearing and a medical certificate from the applicant dated 12 December 2022, advising that the applicant had a viral illness and was unable to attend work and unable to attend a video hearing from 12 December 2022 to 14 December 2022.

21. On 12 December 2022, the Tribunal again agreed to reschedule the hearing and the applicant was invited to attend a further hearing before the Tribunal on 16 December 2022 at 10:00am. In advance of her hearing the applicant was further requested to provide as soon as possible:

    i.A copy of her current Certificate of Enrolment (COE) as required for the grant of a student visa.

    ii.Document/s that show she was currently enrolled in a course, or had an offer of enrolment in a registered course, as required for the grant of a student visa.

    iii.Documents that demonstrate she had sufficient funds, or access to funds, to for pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period, including:

    ·    Evidence of current or proposed course/s she had already paid or still owe for past courses.

    ·    Evidence of funds from an acceptable source.

    ·    If reliance was sought on a money deposit, how long that was held before the visa application.

    ·    Evidence of the regular income of the person who is providing the funds.

    ·    Evidence that showed genuine access to the funds declared while holding a student visa, such as evidence of money received or given.

22. On 16 December 2022, the applicant again requested to the hearing be rescheduled. The applicant submitted a medical certificate dated 16 December 2022, the certificate sated that in the opinion of the practitioner the applicant was unable to attend work or attend her scheduled video hearing from 16 December 2022 to 16 December 2022.

23. On 16 December 2022, the Tribunal rescheduled the matter and wrote to the applicant advising that she was invited to attend a further hearing on 20 December 2022 at 10 am. In advance of her hearing the applicant was further requested to provide as soon as possible:

    iv.A copy of her current Certificate of Enrolment (COE) as required for the grant of a student visa.

    v.Document/s that show she was currently enrolled in a course, or had an offer of enrolment in a registered course, as required for the grant of a student visa.

    vi.Documents that demonstrate she had sufficient funds, or access to funds, to for pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period, including:

    ·    Evidence of current or proposed course/s she had already paid or still owe for past courses.

    ·    Evidence of funds from an acceptable source.

    ·    If reliance was sought on a money deposit, how long that was held before the visa application.

    ·    Evidence of the regular income of the person who is providing the funds.

    ·    Evidence that showed genuine access to the funds declared while holding a student visa, such as evidence of money received or given.

24. On 20 December 2022, the applicant submitted a further medical certificate dated 20 December 2022, advising that she had attended the clinic on that date with a respiratory infection and would be unable to attend her migration hearing that day.

25. The Tribunal agreed to again reschedule the hearing. On 20 December 2022, the Tribunal wrote to the applicant pursuant to the provisions of s 359A of the Act, inviting her to provide comments on information that it considered may be a reason or a part of a reason for affirming the decision under review in writing on or before 3 January 2023. The particulars of the information were that a recent check of her Provider Registration and International Student Management System records (PRISMS) indicated that she did not hold a current Confirmation of Enrolment (CoE) in a course of study. The applicant was advised that the information was important because it was a requirement of the Subclass 573 visa, that she had applied for, that she was enrolled in or the subject of an offer of enrolment in, a course of study that was a principal course, and that is of the type specific for the subclass at the time of application (cl 573.231 of Schedule 2 to the Regulations).

26. On 3 January 2022, the applicant submitted to the Tribunal a letter of offer, dated 19 December 2019, from North Melbourne College for a Diploma of Leadership and Management commencing on 9 January 2023. The applicant also submitted a copy of her transcript and letter of completion a Bachelor of Business (Accounting) issued 8 October 2019, and a letter from CPA Australia confirming the membership of the applicant dated 28 November 2022.

27. On 6 January 2022, the applicant was invited to attend a hearing before the Tribunal via MS Teams on 8 February 2023 at 2:00pm. In advance of her hearing the applicant was further requested to provide to the Tribunal by 1 February 2023:

    vii.A copy of her current Certificate of Enrolment (COE) as required for the grant of a student visa.

    viii.Document/s that show she was currently enrolled in a course, or had an offer of enrolment in a registered course, as required for the grant of a student visa.

    ix.Documents that demonstrate she had sufficient funds, or access to funds, to for pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period, including:

    ·    Evidence of current or proposed course/s she had already paid or still owe for past courses.

    ·    Evidence of funds from an acceptable source.

    ·    If reliance was sought on a money deposit, how long that was held before the visa application.

    ·    Evidence of the regular income of the person who is providing the funds.

    ·    Evidence that showed genuine access to the funds declared while holding a student visa, such as evidence of money received or given.

28. On 8  February 2023, the applicant appeared at a hearing before the Tribunal via MS Teams to give evidence and present arguments. She also provide to the Tribunal the following documents:

    i.A Commonwealth Bank account statement of Mr G Brar for the period 1 July 2022 to 16 December 2022.

    ii.A Kotak Mahindra Bank account statement for Babbar House for the period 1 June 2022 to 15 December 2022.

    iii.Screenshot of an account balance for Babbar House, 16.84,631.22 INR.

    iv.A letter of offer from National Training College of Australia for a Diploma of Leadership and Management from 15 February 2023 to 13 February 2024, total package fee $7,100, subject to the grant of to the applicant of a student visa.

    v.A CoE for the applicant in a Diploma of Leadership and Management, with National Training College of Australia, from 15 February 2023 to 13 February 2024, created on 8 February 2023, conditional upon the grant to the applicant of a student visa.

    vi.Receipt dated 12 November 2020 for the payment of fees to Stott College.

29. The Tribunal discussed with the applicant at hearing the evidence presented. The applicant confirmed that she had obtained enrolment in a further course that day. The Tribunal expressed concern about the changing enrolment and questioned the applicant as to whether it was her genuine intention to undertake the course. The applicant submitted that she had changed courses as her current enrolment was more suitable to her requirements and that her current employer was supportive of her obtaining additional skills. She did not intend to study further at the higher educational level as she had already obtained her bachelor degree. She believed that study at the diploma level would provide her with the skills she desired. The applicant identified that Mr G Brar was her husband and that Babbar House was her sister’s production company in India. The Tribunal identified that it would need to be satisfied of the relevant relationships so that it could establish that the account holders were acceptable individuals for the purposes of Schedule 5A of the Regulations, and that she had genuine access to the funds. It was further identified to the applicant that if she was seeking to rely upon a money deposit then Schedule 5A of the Regulations required that the funds be held three months before the date of visa application. The applicant indicated that she had access to this information and that relevant material demonstrating that she met the visa requirement had previously been filed before the Family Court and Federal Circuit Court, and this court has accepted that she met the visa requirement. It was identified to the applicant that the Tribunal was a separate body and had no access to that information unless filed. The applicant sought leave to file additional material. The Tribunal had concerns about a further delay given that that the relevant material had been identified to her on several occasions in writing, that the applicant had been requested on several occasions to file relevant material and because had not in the past complied with the Tribunal’s procedural direction. These concerns were highlighted to the applicant, and she claimed that she could access the relevant material quickly.

30. The Tribunal was satisfied that the applicant was given a meaningful opportunity to give evidence and present arguments. The applicant raised no objections at the hearing as to the manner of hearing. She further confirmed that she understood the relevant issues as discussed with the Tribunal. Following the hearing the applicant was given leave until 15 February 2023 to submit to the Tribunal any additional documents that she wished to rely upon.

31. On 8 February 2023, the Tribunal further wrote to the applicant and repeated the request that she provide evidence of funds from an acceptable source for the purposes of Schedule 5A of the Act. The following was further identified to the applicant:

    ·    If you seek to rely on a money deposit, you need to show the deposit was held three months prior to the visa application.

    ·    If you have a loan secured against a money deposit, evidence of where the money deposit came from and evidence that the loan is still current.

    · If you have a loan from an acceptable financial institution you need to show evidence of the loan and any security provided for the loan and that it will be current for the duration of your study. An acceptable financial institution as defined in reg1.03 of the Migration Regulations 1994, may not include a provident fund and it is a matter for you to demonstrate the relevant financial institution meets the visa requirements. According to relevant Departmental policy, non-cash assets such as property and other possessions are not acceptable and jewellery in not considered acceptable collateral for the purposes of securing a loan.

    ·     Evidence if the regular income of any person who is providing funds, and their relationship to you to demonstrate that they are an acceptable individual.

    ·     Evidence that demonstrates that you will have genuine access to those funds including the manner of access.

32. On 8 February 2023, the applicant submitted a photograph of an ANZ account summary for an account held in the name of the applicant and Brar Gurwinder Singh, balance $4,381.99, account opened 29 August 2017.

33. On 15 February 2023, the applicant submitted the following additional documents:

    i.Letter of submission

    ii.An affidavit of support by Maninder Kaur Puri dated 15 March 2017.

    iii.Extract of passport of Maninder Kaur Puri, issued 24 May 2021.

    iv.A certificate of marriage between Gurwinder Singh Brar and the applicant dated 19 May 2018.

    v.Punjab National Bank account statement for Maninder Kaur Puri, ending in 8092 for the period 4 February 2017 to 6 March 2017, closing balance 10,12,444.94 INR

    vi.Punjab National Bank account statement for Manider Kaur Puri ending in 8092 for the period 1 April 2015 to 2 March 2017, closing balance 5,61,951.94 INR.

    vii.Letter from Sacred Heart Convent School dated 19 December 2022, confirming the employment of Mrs Maninder Puri. 

    viii.Receipts for the payment of fees to Stotts College dated 4 January 2018, 11 August 2017, 16 March 2017, 20 March 2017, 16 August 2017, 22 September 2017, 25 September 2017 (2), 26 October 2017, 23 November 2017, 12 January 2018, 22 January 2018, 24 January 2018, 30 January 2018, 19 March 2018, 18 April 2018 and 19 September 2019.

    ix.HDFC Bank account statement for Ms Maninder Puri for the period 1 February 2023 to 14 February 2023, account opened 8 April 2021.

    x.Letter of support of Maninder Kaur Puri dated 15 March 2023.

    xi.Kotak Bank account statement for Babbar House for the period 1 June 2022 to 7 February 2023.

    xii.ANZ Bank Statement in the name of the applicant for the period from 4 November 2022 to 10 February 2023.

    xiii.Extract of passport of Jasmine Babbar, issued 6 March 2017.

    xiv.Kotak bank account statement of Jasmine Babbar, for the period 1 March 2017 to 15 March 2017.

    xv.Letter of support of Jasmine Babbar, digitally signed on 15 February 2023.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. In the present case, as the applicant currently is enrolled in a Diploma of Leadership and Management as her principal course, although she initially applied for study at the Higher Education level based on her current enrolment the subclass that may be granted is now a Subclass 572. The issue in the present case is whether the applicant is a ‘genuine applicant for entry and stay as a student’ having regard to the prescribed matters. With the exception of the student guardian visa, this is a requirement for all student visas. For Subclass 572, this requirement is contained in cl 572.223, which is extracted in the attachment to this decision.

3. The requirements of cl 572.223 differ depending upon whether or not the applicant is, and was at the time of application, an ‘eligible vocational education and training student’ (eligible VET student) who has a confirmation of enrolment (COE) in each course of study for which they are such a student. ‘Eligible VET student’ is defined in cl 572.111 to mean an applicant for a Subclass 572 visa who is enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector with an eligible education provider and, in some cases, an educational business partner. Eligible education providers, and educational business partners, are those specified by the Minister in an instrument.

4. On the evidence before the Tribunal, the applicant in this case has not at any relevant time been an eligible VET student with a corresponding COE and cl 572.223(1A) does not apply. As such, to meet cl 572.223, the applicant must give evidence in accordance with the requirements set out in Schedule 5A to the Regulations for the highest assessment level applicable to her. Broadly speaking, these requirements relate to English language ability, financial capacity, and other prescribed matters, and differ depending upon the subclass sought and the applicant’s assessment level. Additionally, the Regulations require that the Minister is satisfied that: the applicant is a genuine student having regard to the stated intention to comply with the applicable visa conditions, and any other relevant matter; and that while the applicant holds the visa he or she will have access to the funds relied upon to satisfy the Schedule 5A financial capacity requirements.

   Does the applicant meet the applicable evidentiary requirements in Schedule 5A?

5. The assessment level that applies to the applicant is the highest assessment level at the time of application for the relevant course of study for the subclass of visa: reg 1.42. ‘Assessment level’ and ‘highest assessment level’ are defined in reg 1.03. ‘Assessment level’ means the level of assessment specified by the Minister for a kind of passport. The highest assessment level for a single course of study that is a registered course, is the assessment level for that course of study.

6. In this case, the applicant holds a passport of India. The assessment level for a holder of such a passport for Subclass 572 (the subclass for the applicant’s principal course) is assessment level 3.

7. The evidentiary requirements for this assessment level for Subclass 572 are set out in Part 4 of Schedule 5A.

   English language Proficiency – Clause 5A407

8. There are various requirements for English language proficiency set out in cl 5A407. Although the applicant has submitted an IELTS test taker score report, the date of test is 12 September 2015, which post-dates the visa application. The Tribunal has considered her transcripts from Holmsglen College dated 28 August 2015, which record that in 2013, two years before the date of the visa application she completed five of seven modules towards the award of a Certificate IV in Accounting. The Tribunal is therefore satisfied that less than two years before the date of the visa application and as the holder of a student visa she has successfully completed a substantial part of a course that was conducted in English and was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher.  The Tribunal is satisfied that the applicant meets the English proficiency requirement of cl 5A407(d)(iii).

   Financial Capacity Requirements

9. Clause 5A408 requires that the applicant give evidence of funds from an acceptable source that is sufficient to meet the school costs and living costs for the applicant for the first 12 months. It also requires a declaration from the applicant hat she has access to the funds from and acceptable source and evidence that the regular income of any individual providing funds to the applicant was sufficient to accumulate the level of funding being provided by the individual.

10. The first 12 months is defined in clause 5A101 as follows:

    first 12 months, for an applicant, means the period that:

    (a)      begins:

    (i)      if the application is made outside Australia — on the day of the applicant’s expected arrival in Australia; or

    (ii)      if the application is made in Australia — on the day that the student visa is expected to be granted to the applicant; and

    (b)      ends on the earlier of the following:

    (i)      the day 12 months after the beginning of the period;

    (ii)      the last day of the applicant’s proposed stay in Australia.

11. In this case if the visa was to be granted to the applicant upon remittal by the Tribunal it is expected to be not earlier that 13 March 2023. The applicant’s proposed course concludes on 13 February 2024. It is anticipated that she would depart Australia proximate to that time. As that is less than 12 months, 13 February 2024 is the earlier date and this is less than 12 months.

    Course fees

12. Course fees are defined in cl 5A101. The evidence contained in the offer of enrolment provided by the applicant to the Tribunal from National College of Australia is that her total course fees are $7,100. The applicant confirmed this amount at the hearing. For the relevant 11 month period the Tribunal calculates course fees as $6,508.33.[1]

    [1] $7,100/12 x 11 = $6,508.33

13. The applicant claimed to have made a partial payment of $800 towards her fees, which is confirmed in the CoE she has submitted. It follows that the remaining balance of course fees to be demonstrated by the applicant is $5,708.33.

    Living Costs

14. According to the relevant legislative instrument the living costs for the applicant are $18,610 per year for the applicant.

15. At the time of application the applicant did not include her former spouse. The applicant has subsequently divorced and then re-married in 2018 while the application was awaiting review. She also does not seek to include her current husband, Mr Gurwinder Singh Brar now in the visa application or at a later date if granted the visa.

16. For the 11 months of the assessment the Tribunal calculates that the applicant is to demonstrate $17,059.16[2] in living costs.

    Travel Costs

    [2] $18,610/12 x 11= $17,059.16

17. Travel costs are defined in cl 5A101. The applicant’s home country is India. At the hearing the applicant agreed with the estimate of the cost of a one way ticket to India to be approximately $1,500.00.

    Total Costs

18. In accordance with cl 5A508, the Tribunal finds that the applicant’s total course fees, living costs and travel costs for the first 12 months are as follows:

    Course fees   $5,708.33

    Living Costs   $17,059.16

    Travel Cost  $1,500.00

    TOTAL   $24,717.49

19. The applicant is therefore required to give evidence of funds sufficient to meet expenses in the sum of $24,717.49.

    Does the applicant have sufficient funds to meet costs and expenses?

20. ‘Funds from an acceptable source’ is defined in cl 5A408(2).

21. As the applicant has not completed more than 75% of her currently proposed course she is required to show either

    i.a money deposit that an acceptable individual has held for at least the three months immediately before the date of the application;

    ii.a loan from a financial institution made to, and held in the name of, an acceptable individual;

    iii.A loan from the government of the applicant’s home country;

    iv.Financial support from another specified entity. For example the applicant’s proposed education provider, the government of a foreign country, a corporation that conducts commercial activities outside the country in which is it based and employs the applicant in a role in relation to which the applicant’s principal course is of direct relevance, an acceptable non-profit organisation or an organisation specified by the Minister in an instrument in writing.

22. At the hearing the applicant sought to rely upon the money deposits in the Commonwealth Bank account of her husband Gurwinder Singh Brar, and her sister’s company Babbar House. As identified to the applicant at hearing, these funds are not demonstrated to have been held for at least three months before the date of the visa application and are therefore not considered funds from an acceptable source for the purposes of cl 5A408. The evidence of the applicant at hearing was that Babbar House was the production company of her sister, there are no company documents before the Tribunal to verify this, or that these company funds could be accessed by the applicant for her education. Finally, it is also not demonstrated to the Tribunal that the company Babbar House is an acceptable individual as defined in cl 5A101. Neither it is demonstrated that the funds from Babbar house are funds from a relevant corporation that conducts commercial activities outside the country in which it is based and employs the applicant in a role in relation to which the applicant’s Diploma of Leadership is of direct relevance.

23. The Tribunal then considered the post-hearing documents submitted by the applicant. She has provided a copy of her personal ANZ bank account, which at 9 February 2023, has a balance of $4,612.82. However, this statement only convers the period 4 November 2022 to 10 February 2023, and although the applicant is an acceptable individual it is not demonstrated that these funds were held three months prior to the visa application. Similarly the joint account the applicant holds with her husband with ANZ, is documented to have been opened only on 29 August 2017; this is not three months prior to the visa application. Additionally, her mother’s statement from the HDFC Bank records that it was only opened on 8 April 2021. Therefore they are not funds from an acceptable source as defined in cl 5A408(2).

24. Maninder Kaur Puri is the mother of the applicant, the Tribunal is satisfied that she is an acceptable individual. The Tribunal has considered her money deposit with the Punjab National Bank as evidenced in the statement presented for account 8092. It is noted that these were also the financial resource presented to the Department at the time of visa application. Adopting the most beneficial approach for the applicant and assessing the balance at the date of visa application rather than three months before, this records that as at 28 August 2015 she had a balance of 2,08,417.63 INR this equates to approximately AUD $3,689.62.[3] The Tribunal is also satisfied from the evidence provided that this account was held for three months prior to the visa application, and while the balance has fluctuated within that period it is an account in which her salary is paid. The income tax returns and letter of employment further demonstrate to the satisfaction of the Tribunal the sources of this regular income and hat it is sufficient to have accumulated this level of funding. The Tribunal accepts that these funds are funds from an acceptable source within the definition of cl 5A408(2). However, this amount falls short of the total costs that the applicant is required to demonstrate.

    [3] 208,417.63 INR to AUD - Indian Rupees to Australian Dollars Exchange Rate (xe.com)

25. In her letter of submission, the applicant refers to a personal loan for 410,000 INR in the name of her mother which has been sanctioned and disbursed for any purpose by the Punjab Bank. The Tribunal has considered the statement from Punjab National Bank for account 8092 for the period 4 February 2017 to 6 March 2017, and also had regard to the relevant supplemental loan document previously submitted by the applicant in matter 160356. It is accepted that this loan was granted around 6 March 2017. Yet, in her submission to the Tribunal applicant also details that this loan has now matured and been closed off. This is consistent with the letter from the Punjab National Bank dated 6 March 2017 confirming the grant of the loan which documents that it was for one year up to 6 March 2018. As the loan no longer exists it cannot be considered in the current circumstances for demonstrating that the applicant has sufficient funds for costs and expenses for her current proposed course.

26. In matter 1608356, the applicant also sought to rely on monies held by her mother in the Employees’ Provident Fund Organisation. The statement of 7 November 2016 documents that the account has been held since 20 April 1982 and the balance as at 7 November 2016 is 5,31,588 INR which equates to AUD$9,440.46[4]. The applicant has not submitted evidence which would satisfy the Tribunal that her mother’s provident fund meets the definition of a ‘financial institution’ is an acceptable institution for the purposes of reg.103 of the Regulations. The Tribunal also has regard of the additional documentation submitted by the applicant regarding the fund. This does not relate to the particular fund but is a general media article and identifies that a provident fund is a fund in which salaried employees routinely deposit small amounts and while it is advised that an employee use money in a provident fund for retirement, early withdrawal is permitted for half of the funds for education expenses. The Tribunal is not satisfied as to the rules of this particular fund and also, at best only half of the deposited funds would be available for the assistance of the applicant. Ultimately, the Tribunal is not satisfied that these are funds from an acceptable source as defined in cl 5A408(2). It also noted that even if the applicant had addressed the issues regarding the acceptability of the Employees Provident Fund Organisation account, the total sum of this source of funds and the monies in the applicant’s mother’s Punjab National Bank account remains considerably less than that which the applicant is required to demonstrate.

    [4] 531,588 INR to AUD - Indian Rupees to Australian Dollars Exchange Rate (xe.com)

27. The applicant also makes reference in her submission to the Tribunal of a loan of 499,097 INR sanctioned and disbursed against gold for any purpose for Mrs Jasmine Babbar by Kotak Mahindra Bank. The Tribunal is satisfied from the passport and statements provided that Jasmine Babbar is the sister of the applicant and an acceptable individual. The Tribunal has also considered the Kotak Mahindra Bank sanction letter dated 6 March 2017, and the Kotak Mahindra Bank account statement for Jasmine Arya Babbar for the period 1 March 2017 to 15 March 2017. It is accepted that Mrs Babbar was advanced a gold loan on 6 March 2017 in the sum of 499,097.00 INR which equates to AUD$8,859.69.[5] However, the assessment of these funds is also considerably problematic for the Tribunal. According to the sanction letter of the Kotak Mahindra Bank, these funds were advanced on the pledge of gold ornaments. The Tribunal is mindful of the relevant policy directive contained in the Department’s Procedural Advice Manual (PAM 3) that non-cash assets such as possessions are not considered acceptable as evidence of financial support and while they can be considered collateral to secure a loan, that jewellery is not to be considered acceptable collateral. While the Tribunal is not bound by department policy, it not satisfied in the particular circumstances that it is in the interests of consistency of decision making nor that the evidence of the applicant demonstrates it is appropriate to disregard it. This is because it is also noted that the sanction letter dated 6 March 2017, presented by the applicant, documents that the maturity date of the facility was 5 March 2018, and it was only valid for a period of 36 months. Both of these dates have now passed. Although the applicant makes a submission that the loan remains active with an increased limit, there is no evidence to corroborate this claim. The relevant account statement for the initial deposit of these monies advanced pursuant to the gold loan to Mrs Babbar from the Kotak Mahindra Bank only provides details of transactions up to 15 March 2017. The current account that the applicant is seeking to rely upon from her sister is in the name of her production company, Babbar House, not her as an individual and provides no discernible gold loan transactions. The Tribunal is not satisfied on the material before it that the loan continues to exist or that there is an increased. The evidence of this source funds does not establish to the satisfaction of the Tribunal that if granted the visa the applicant has sufficient funds for costs and expenses for her current proposed course.

    [5] 499,087 INR to AUD - Indian Rupees to Australian Dollars Exchange Rate (xe.com)

28. The Tribunal is unable to discern any further information submitted by the applicant that would meet the requirements of Schedule 5A. The Tribunal has considered the submission of the applicant at hearing that the Family Court of Australia and Federal Circuit Court found that she met the visa requirements. This is not reflected in the orders made by the court remitting the matter to the Tribunal. The applicant has produced no further evidence from these proceedings which would corroborate her submissions.

29. While it is accepted that considerable time has elapsed since the original visa application and that there has been a change in the applicant’s study program, the legislative requirements that she is required to meet have not altered. It is also noted that the costs of the applicant’s intended program of study have reduced as has the period for which she is required to show relevant funds. The Tribunal has made repeated requests for the applicant to provide relevant evidence and allowed further time post hearing for the consideration of additional material. It remains that the Tribunal is not satisfied that the applicant has demonstrated that she has funds from and acceptable source are required by cl 5A408(1).

    Conclusion – Schedule 5A

30. On the basis of the above, the applicant has not given evidence in accordance with the applicable Schedule 5A requirements, and therefore she does not satisfy cl 572.223(2)(a).

31. For these reasons, the Tribunal finds that criteria for the grant of a Subclass 572 visa are not met. As there is no evidence the applicant is eligible to be granted a student visa of another subclass, the decision under review must be affirmed.

    DECISION

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

    Penelope Hunter

    
    

    Member

    
    

    ATTACHMENT – Extracts from the Migration Regulations 1994

    572.223(1)         The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant meets the requirements of subclause (1A) or (2).

    (1A)If the applicant is, and was, at the time of application, an eligible vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student:

    (a)the applicant gives the Minister evidence that the applicant has:

    (i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and

    (ii)educational qualifications required by the eligible education provider; and

    (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)any other relevant matter; and

    (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

    (i)the costs and expenses required to support the applicant during the proposed stay in Australia; and

    (ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.

    (2)If subclause (1A) does not apply:

    (a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

    (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)any other relevant matter; and

    (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.