Sachdeva (Migration)

[2018] AATA 3305

Sachdeva (Migration) [2018] AATA 3305 (14 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Neha Sachdeva
Mr Vahin Kumar

CASE NUMBER:  1622309

HOME AFFAIRS REFERENCE(S):           BCC2016/3082701

MEMBER:Stephen Conwell

DATE:14 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the applicants 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 14 August 2018 at 3:18pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine access to funds – Applicant’s bank statements provided – Parents income tax returns provided – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65, 359A
Migration Regulations 1994 (Cth), Schedule 2 cls 500.214, 500.211, 500.311

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 16 December 2016 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 16 September 2016. 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.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant will have sufficient funds to meet the costs and expenses of the applicant during the applicant’s intended stay in Australia and the costs and expenses of each member of the applicant’s family unit who will be in Australia, and genuine access to such funds.

4. On 2 May 2018, the Tribunal sent the applicant a written invitation to attend her Hearing scheduled on 24 May 2018. The invitation included information pertaining to the evidence the applicant should submit to the Tribunal at least 7 days before the Hearing.  The applicant was asked to provide evidence:

   a.   that demonstrates she has genuine access to sufficient funds to meet her costs and those of her family members covering the relevant period of intended stay, including course fees, living costs, school costs (where relevant) and travel costs;

   b.   that the funds are of a kind specified in the relevant legislative instrument;  or

   c.   of the annual income of her parents/spouse/de facto partner and that she has genuine access to those funds.

5. On 17 May 2018, the Tribunal received several documents from the applicant, including:

   a.   Statement of Purpose by the applicant;

   b.   Birth Certificate of her son, the secondary applicant, born 23 February 2010, Melbourne;

   c.   Income tax returns for 2015, 2016 and 2017 for her father, Rakesh Kumar;

   d.   Income tax returns for 2014 and 20167 for her mother, Rakesh Kumar Savita (‘Savita’);

   e.   Loan Sanction Letter from Canara Bank dated 16 May 2018 in favour of the applicant’s mother, Savita, for 200,000 Indian Rupees (INR);

   f.   Affidavit of Support by the applicant’s parents, dated 17 May 2018.

   g.   Government of India Identity Cards (Aadhaar) of each parent;

   h.   various medical certificates from 2010 and 2015 pertaining to the applicant;

   i.   Victorian Magistrate’s Court Interim Intervention Order dated, 6 October 2015 pertaining to Rajiv Kumar, the applicant’s ex-husband;

   j.   Family Court Divorce Order dated 9 August 2017 pertaining to the applicant and her ex-husband;

   k.   several Certificates and academic transcripts pertaining to the applicant’s study history in Australia.

6. The applicants appeared before the Tribunal on 24 May 2018 to give evidence and present arguments. The Tribunal Hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. At Hearing the applicant:

   a.   expanded on her written Statement, explaining her marital and other personal problems, as well as blaming poor advice from her migration agent as the reason for her not providing evidence of sufficient funds to the Department of Home Affairs, when first requested to do so;

   b. informed the Tribunal that she was on a Bridging Visa E which prevented her from studying and that was the reason that she was not enrolled in a ‘course of study’, as required by cl.500.211(a) of Schedule 2 to the Regulations

8. The Tribunal explained to the applicant that enrolment in a course of study is a mandatory time-of-decision criterion in sub-class 500 visa applications and in the absence of such enrolment the Tribunal is able to affirm the delegate’s decision to refuse her visa on the basis of non-enrolment.

9. The applicant requested the Tribunal to grant her time to obtain enrolment.  Given that the applicant appeared at the Hearing unrepresented, the Tribunal agreed to the request, allowing the applicant 7 days from the Hearing in which to provide evidence of enrolment.  On 29 May 2018, the applicant submitted a COE, created on 25 May 2018 for her enrolment in a Diploma of Business with the course running from 15 July to 30 October 2018.

10. By letter of 5 June 2018, the  Tribunal invited the applicant to provide evidence that she has genuine access to sufficient funds for her costs and expenses during her study and stay in Australia, as well as for the costs and expenses of each member of her family unit, namely the secondary applicant, her son, Vahin Kumar.

11. On 19 June 2018, the Tribunal received several documents from the applicant, including:

    a.   Commonwealth Bank Account statement dated 13 June 2018 confirming that the applicant currently holds $40,022.90 in her Australian bank account;

    b.   an Overseas Student Health Certificate issued by Medicare in favour of both applicants for the period, 16 Jun 2018 to 18 November 2018.

12. On 27 July 2018, the Tribunal wrote to the applicant pursuant to s.359A of the Migration Act advising her that the Tribunal had in its possession information that it considers would be the reason, or a part of the reason, for affirming the decision that is under review; and inviting the applicant to comment on or respond to it.

13. The relevant information pertained to advice received by the Tribunal from the applicant’s education provider stating that her enrolment in a Diploma of Business had been cancelled upon the institute learning that the applicant was on a Bridging Visa E, with no study rights.

14. The applicant responded by providing a further COE created on 7 August 2018 for  enrolment in a Diploma of Business at the Gen Institute, with the course running from 10 September to 28 May 2019. The applicant also submitted:

    a.a further Statement, witnessed on 9 August 2018;

    b.a letter dated 6 August 2018 from the Department of Home Affairs responding to the applicant’s request for a change to her visa conditions by reinstating her study rights. The Department decision was to deny the request and reimpose the ‘no study rights’ visa condition.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The criteria for a Sub-class 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.

17. 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: cl.500.214(2). The Tribunal must also be satisfied that the applicant will have genuine access to the relevant kinds of funds.

18. In the present case, the Minister has required the applicant to give evidence of financial capacity in accordance with cl.500.214(3).

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

    Financial Capacity - IMMI 18/010

19. The requirements for evidence of financial capacity for cl.500.214(3) are set out in Migration Instrument IMMI 18/010, which is attached to this decision.

20. The applicant provided the Tribunal with evidence she is enrolled in a Diploma of Business scheduled to run between 10 September 2018 and 28 May 2019 with outstanding course fees of $3,150.

21. The expected date of the visa grant is 31 August 2018; the applicant's course finishes on 28 May 2019, and giving the applicants a month to depart by 28 June 2019, the total Living Costs for 302 days are $19,303.

22. On the basis of the evidence provided the Tribunal calculates the applicant needs to show access to $30,672 being outstanding course fees of $3,150, total Living Costs of $19,303 and total travel costs of $1,600 (being calculated as $800 per person for one way travel).

23. The applicant provided evidence of her savings account at the Commonwealth Bank (Savings Account No. 063253 10963350) in the sum of approximately AUD40,022, at the end of June 2018, to cover the applicant’s costs. The June 2018 bank statement shows that the applicant’s mother, Savita Kumar made a deposit from her Canara Bank account into the applicant’s bank account of the sum of $39,500 on 28 May 2018.

24. On the basis of the above, the Tribunal is satisfied that the applicant meets cl.500.214(3).

25. From the evidence provided the Tribunal is satisfied the applicant will have genuine access to the funds meaning that cl.500.214(1) is met.

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

27. 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.

    Genuine Temporary Entrant (‘GTE’)Concerns

28. The Tribunal notes that the applicant appeared at Hearing not being enrolled in a course of study and her visa status of Bridging visa ‘E’ afforded her no study rights.  Despite this she was able to obtain a COE which was later cancelled, prior to commencement of her course, due to her visa status.  She has then obtained a further COE which, due to her visa status, will in all likelihood, also be cancelled prior to her commencing the course.

29. The Tribunal is of the view that the applicant is obtaining COEs for migration purposes and not with the genuine intention to study and progress academically; however the Tribunal is not able to ‘look behind’ the COE submitted by the applicant, and at the time of decision, the COE submitted appears to be valid.

30. As the decision to refuse the applicant’s visa was not on GTE grounds and since the Tribunal is remitting the application, it is appropriate for the delegate to consider this issue on remittal.

    DECISION

31. The Tribunal remits the application for Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicants 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.

    Stephen Conwell
    Member

    Attachment – IMMI 18/010 – Financial capacity instrument (extract)

    …

    6Subclass 500 (Student) visa – primary applicants

    (1)For the purposes of subclause 500.214(3) of Schedule 2 to the Regulations, a primary applicant must give to the Minister evidence of financial capacity that satisfies the requirements of subsection (2), (3), (4), (5) or (6).

    Note: For primary applicant, see section 4 of Part 1 of this instrument.

    (2)The evidence of financial capacity:

    (a)is in the form specified in section 10; and

    (b)demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of the primary applicant:

    (i)travel expenses; and

    (ii)the following living costs and expenses:

    (A)if the primary applicant intends to stay in Australia for a period of 12 months or more – AUD20,290 (annual living costs); and

    (B) if the primary applicant intends to stay in Australia for a period of less than 12 months – the pro rata equivalent of annual living costs, calculated as specified in section 11; and

    (iii)the following course fees, minus any amount already paid:

    (A) if the duration, or the remainder, of the primary applicant’s period of study in Australia is less than 12 months – the fees for the course of study or the remaining components of the course of study; or

    (B) If the duration, or the remainder, of the primary applicant’s period of study in Australia is more than 12 months – course fees for the first 12 months of the period study in Australia; and

    Note: The period of study is the period commencing:

    (a)if the applicant’s first course of study commenced after the date of application, on the first day of the first course of study; or

    (b)if the applicant’s first course of study commenced before the date of application, on the date of application,

    and ending on the final day of the applicant’s final course of study.

    (c)demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of each secondary applicant making a combined application with the primary applicant:

    (i)travel expenses; and

    (ii)for each secondary applicant who intends to stay in Australia for a period of 12 months or more – the following costs (annual living costs):

    (A)for a spouse or de facto partner - AUD7,100; and

    (B)for a dependent child - AUD3,040; and

    (iii)for each secondary applicant who intends to stay in Australia for a period of less than 12 months – the pro rata equivalent of annual living costs, calculated as specified in section 11; and

    (iv)the following school fees for each school-age dependant:

    (A)if the school-age dependant intends to stay in Australia for more than 12 months - AUD8000 (annual school costs); or

    (B)if the school-age dependant intends to stay in Australia for less than 12 months – the pro rata equivalent of annual school costs, calculated as specified in section 11; or

    (C)if the school-age dependant is enrolled in a course of study at a State or Territory government school where the fees have been waived, and the Primary Applicant is enrolled in a course as a doctoral degree student, a Foreign Affairs student, a Defence student or  a Commonwealth sponsored student – nil.

    Note: For secondary applicant, see section 4 of Part 1 of this instrument.

    (3)The evidence of financial capacity:

    (a)is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and

    (b)demonstrates that the primary applicant’s parent, spouse or de facto partner has a personal annual income, in the 12 months immediately before the application is made, that is:

    (i)if there is no secondary applicant– at least AUD60,000; or

    (ii)if there is a secondary applicant  – at least AUD70,000.

    (4)The evidence of financial capacity is the primary applicant’s completed AASES form.

    Note: AASES form is defined in regulation 1.03 of the Regulations to mean, for a secondary exchange student, an Acceptance Advice of Secondary Exchange Student form from the relevant State or Territory education authority, containing the following declarations:

    (a)a declaration made by the student’s exchange organisation, accepting the student;

    (b)a declaration made by the student’s parent, or the person or persons having custody of the student, agreeing to the exchange.

    (5)If the primary applicant is a Foreign Affairs student – the evidence of financial capacity is a letter of support from the Department of Foreign Affairs and Trade.

    (6)If the primary applicant is a Defence student – the evidence of financial capacity is a letter of support from the Department of Defence.

    7Subclass 500 (Student) visa – secondary applicants included in the primary student visa holder’s application

    (1)For the purposes of subclause 500.313(3) of Schedule 2 to the Regulations, a secondary applicant who is included in the primary student visa holder’s application, must give to the Minister evidence of financial capacity that satisfies the requirements of subsection (2), (3), (4), (5) or (6).

    (2)The evidence of financial capacity:

    (a)is in the form specified in section 10; and

    (b)demonstrates that sufficient funds are available to meet the costs and expenses of the primary student visa holder set out in subparagraphs 6(2)(b)(i) to (iii) of this Part; and

    (c)demonstrates that sufficient funds are available to meet the costs and expenses of each secondary applicant making a combined application with the primary student visa holder specified in paragraphs 6(2)(c)(i) to (iv) of this Part.

    (3)The evidence of financial capacity:

    (a)is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and

    (b)demonstrates that the primary student visa holder’s parent, spouse or de facto partner has a personal annual income that is at least AUD70,000.

    (4)If the primary student visa holder is a Foreign Affairs student and has provided a letter of support mentioned in subsection 6(5) of this Part – the evidence of financial capacity is the letter of support if the letter of support indicates that the Department of Foreign Affairs and Trade will meet the living costs and expenses of each secondary applicant.

    (5)If the primary student visa holder is a Defence student and has provided a letter of support mentioned in subsection 6(6) of this Part – the evidence of financial capacity is the letter of support if the letter of support indicates that the Department of Defence will meet the living costs and expenses of each secondary applicant.

    (6)If:

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

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

    then the evidence of financial capacity:

    (c)demonstrates that sufficient funds are available to meet the costs and expenses of the secondary applicant specified in paragraphs 6(2)(c)(i) to (iv) of this Part.

    8Subclass 500 (Student) visa – secondary applicants not included in the primary student visa holder’s application

    (1)For the purposes of subclause 500.313(3) of Schedule 2 to the Regulations, a secondary applicant (the first secondary applicant), who is not included in the primary student visa holder’s application, must give to the Minister evidence of financial capacity that satisfies the requirements of subsection (2), (3), (4), (5) or (6).

    (2)The evidence of financial capacity:

    (a)is in the form specified in section 10; and

    (b)demonstrates that sufficient funds are available to meet the costs and expenses of the primary student visa holder specified in subparagraph 6(2)(b)(ii) of this Part; and

    (c)demonstrates that sufficient funds are available to meet course fees for any component of the primary student visa holder’s course of study which will be completed while the first secondary applicant is in Australia, up to an amount equivalent to fees for 12 months of the course of study, minus any amount already paid; and

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

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

    (3)The evidence of financial capacity:

    (a)is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and

    (b)demonstrates that the primary student visa holder’s parent, spouse or de facto partner has a personal annual income that is at least AUD70,000.

    (4)If the primary student visa holder is a Foreign Affairs student and has provided a letter of support mentioned in subsection 6(5) of this Part – the evidence of financial capacity is the letter of support if the letter of support indicates that the Department of Foreign Affairs and Trade will meet the living costs and expenses of each secondary applicant.

    (5)If the primary student visa holder is a Defence student and has provided a letter of support mentioned in subsection 6(6) of this Part – the evidence of financial capacity is the  letter of support if the letter of support indicates that the Department of Defence will meet the living costs and expenses of each secondary applicant.

    (6)If:

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

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

    then the evidence of financial capacity:

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

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

    …

    10Evidence 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.

    11Pro 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.