Rattu (Migration)

[2020] AATA 1942

Rattu (Migration) [2020] AATA 1942 (31 January 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Sourav Rattu

CASE NUMBER:  1815926

HOME AFFAIRS REFERENCE(S):          BCC2018/1240743

MEMBER:  David Thompson

DATE:  31 January 2020

PLACE OF DECISION:  Perth

DECISION:  The Tribunal affirms the decision not to grant the

applicant a Student (Temporary) (Class TU) visa.

Statement made on 31 January 2020 at 3:44 pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – evidence of financial capacity – no evidence of access to funds submitted to department or tribunal – no appearance at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360, 360A, 362B
Migration Regulations 1994 (Cth), Schedule 2, cl 500.214(3)

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 12 May 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 15 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. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he provided no verifiable evidence relevant to the issue of access to funds, such that the delegate could not be satisfied that he met the criteria laid down in cl.500.214.

4. The applicant was assisted in relation to the review by their registered migration agent.

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

   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 satisfies the requirements of cl.500.214.

7. On 16 December 2019, the Tribunal wrote to the applicant by email, sent to his registered migration agent, inviting the applicant to attend a hearing and requesting a response within 7 days (that is, by 21 December 2019). The Tribunal is satisfied that this invitation fulfilled the requirements of ss.360 and 360A of the Act. On 20 December 2019 the Tribunal received an email from the applicant’s representative stating that although she had made many attempts to contact her client she had been unable to do so, and requesting an extension of the date by which the applicant’s response was due. On 23 December 2019 the Tribunal received a telephone call from the applicant’s representative. In the course of that telephone call the Tribunal explained that a formal extension of time was not necessary.

8. On 20 January 2020, the Tribunal received a further email from the applicant’s representative stating (in effect) that despite her best efforts she had still not been able to contact her client, and would be withdrawing as his representative. The following day, the Tribunal received a further email from the applicant’s representative stating that she had managed to contact him and confirming that he would appear before the Tribunal at the hearing listed for 29 January 2020. The Tribunal notes that it has not received any notice from the applicant’s representative stating that she had ceased to act for him.

9. On 21 January 2020 the Tribunal sent the applicant a reminder of the date of his hearing by SMS to the mobile telephone number he had provided with his review application. The Tribunal received no response of any kind to that message, and certainly no response indicating that the message had not been delivered. The Tribunal sent a further hearing reminder by SMS on 28 January 2020, with the same result.

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1. Despite the correspondence and reminders mentioned above, the applicant failed to appear before the Tribunal on 29 January 2020. The Tribunal attempted to contact both the applicant’s representative and the applicant himself by telephone, with a view to holding the hearing by telephone. However, the Tribunal was unable to reach either of them.

2. As a result of the Tribunal’s attempt to contact the applicant’s representative on the morning of hearing, the Tribunal received a telephone call from her well after the time for which the hearing had been listed. The representative stated that she received a communication from the applicant in which he stated that he was in a bad position and could not attend the hearing. No further details regarding the applicant’s position were provided to the Tribunal and no request for an adjournment of the hearing was then made.

3. Later that day, the Tribunal received a further email message from the applicant’s representative. As relevant, that message said:

   Our client Mr. Rattu suddenly informed us this morning that he is in a kind of bad situation and he cannot attend the Hearing today. He is wondering whether AAT can arrange a Hearing for him on another date.

   The Tribunal treated this communication as a request to adjourn the hearing made after the fact and to relist the matter for further hearing.

4. The Tribunal responded by email on the following day, noting that the applicant’s request was not supported by any information as to the nature of his difficulties, or as to the reason for his failure to attend at hearing. The Tribunal stated that it would not consider the request unless such supporting information was provided by 12.00 pm on 31 January 2020. The applicant has not responded in any way.

5. In the circumstances recited above, the Tribunal is satisfied that the applicant has had notice of the hearing of his review application, and that the applicant’s failure to appear before the Tribunal has pursuant to s.362B(1) enlivened the Tribunal’s power and discretion under s.362B(1A). Pursuant to that latter provision, the Tribunal has decided to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

   Genuine access to funds (cl.500.214)

6. 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: cl.500.214(1).

7. In the present case, the Minister has required the applicant to give evidence of financial capacity in accordance with cl.500.214(3). That is apparent from the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant at the time of lodging his review application.

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

1. The requirements for evidence of financial capacity for cl.500.214(3) are set out in LIN 19/198, which is attached to this decision.

2. In this case, the applicant has provided the Tribunal with no evidence of any kind, and certainly no evidence upon which the Tribunal decide that the applicant had met the requirement of cl.500.214(3).

3. The Tribunal has read and considered the Department’s file in relation to the applicant’s visa application. The only evidence on that file that is relevant to the issues raised by cl.500.214(3) is:

a.a copy of Confirmation of Enrolment (CoE) 988D6E27 in respect to the applicant’s enrolment in a Bachelor of Business programme at Stott’s College, the course to run from 18 March 2019 to 31 December 2020; and

b.the applicant’s statement made in his visa application that he holds AUD30,000 on deposit with “Commonwealth” (presumably intended as a reference to the Commonwealth Bank of Australia).

1. The CoE was, on its face, created on 14 March 2018. It may or may not be the applicant’s current CoE. It states that the total fee for the applicant’s course is AUD33,200, and that the applicant had at the date of the CoE paid AUD1000 of that total amount. That information may well be out of date. There is no documentary evidence on the Departments’ file verifying the applicant’s claim to hold the sum AUD30,000 on deposit. Even if there were, that evidence would be well out of date by the date of this decision, and require to be supplemented or updated. This evidence is a very long way from being sufficient to allow the Tribunal to be satisfied that the applicant meets cl.500.214(3). It is, in fact, almost entirely lacking in probative value.

2. On the basis of the above, the Tribunal cannot be, and is not, satisfied that the applicant meets cl.500.214(3).

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

4. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass

   590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

   DECISION

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

   David Thompson
   Member

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Attachment – LIN 19/198 – Financial capacity instrument (extract)

1. 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.

   ( )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

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(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.

1. 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

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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.

1. 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

Case Number 1815926  Page 7 of 8

support if the letter of support indicates that the Department of Defence will meet the living costs and expenses of each secondary applicant.

(6)         If:

(a)the primary student visa holder is a Foreign Affairs student or a Defence student and has provided a letter of support mentioned in subsection 6(5) or (6) of this Part; but

(b)the letter of support does not indicate that the relevant department will meet the living costs and expenses of each secondary applicant;

then the evidence of financial capacity:

(c)demonstrates that sufficient funds are available to meet the costs and expenses of each secondary student visa holder and that the first secondary applicant has sufficient funds available to meet their own costs and expenses, and the costs and expenses of each additional secondary applicant making a combined application with the first secondary applicant, specified in subparagraphs 6(2)(c)(ii) to (iv) of this Part; and

(d)demonstrates that the first secondary applicant has sufficient funds available to meet their own travel expenses and the travel expenses of all secondary applicants making a combined application with the first secondary applicant.

...

1. Evidence of financial capacity

The following forms of evidence of financial capacity are specified:

(a)money deposit with a financial institution;

(b)loan with a financial institution;

(c)government loans;

(d)scholarship or financial support.

1. Pro rata equivalent

In this Part, the pro rata equivalent of annual costs is calculated by:

(a)dividing the annual amount by 365; and

(b)multiplying the resulting number by the number of days the applicant is intending to stay in Australia.

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