Sidhu (Migration)

Sidhu (Migration) [2019] AATA 1860 (20 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gagandeep Singh Sidhu
CASE NUMBER:  1721647
HOME AFFAIRS REFERENCE(S):           BCC2017/2658770
MEMBER:Meredith Jackson
DATE:20 March 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 20 March 2019 at 6:40pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – living expenses – insufficient balance in bank account – financial support from friends – not related – IMMI 18/010 – unable to rely on income from friends – genuine access to funds – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.214

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 September 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 26 July 2017. 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.
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 met the financial requirement for the visa.
The applicant appeared before the Tribunal on 20 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s financial sponsor Mr Ravinderpal Singh.
The applicant was assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets the financial requirement and has genuine access to the relevant kinds of funds.
Genuine access to funds (cl.500.214)
Clause 500.214 requires the applicant to meet certain financial requirements. If the applicant is required to do so by the Minister, they must give evidence of financial capacity that satisfies the requirements set out in an instrument: cl.500.214(3). All primary applicants must also satisfy the Tribunal that, while they hold the visa, sufficient funds will be available to meet their costs and expenses during their intended stay in Australia, as well as the costs and expenses of any members of their family unit who will be in Australia: cl.500.214(2). The Tribunal must also be satisfied that the applicant will have genuine access to the relevant kinds of funds.
In the present case, the Minister has required the applicant to give evidence of financial capacity in accordance with cl.500.214(3).
Has the applicant provided evidence of financial capacity in accordance with the instrument?
The requirements for evidence of financial capacity for cl.500.214(3) are set out in IMMI 18/010, which is attached to this decision.
Summary of the case
The applicant, Mr Gagandeep Singh Sidhu, is a 24 year old citizen of India who has been studying in Australia since 2014 and who is currently enrolled in a Master of Business Administration (MBA) at Holmes Institute due to finish in July 2020. He previously completed a Bachelor of Business in Tourism and Hospitality Management funded by his parents who live in India. For his 12 months of intended stay in Australia he claims he will rely on Australian citizen friends he has known for four years to meet his specified living and other expenses.
Documentary and oral evidence considered
Mr Sidhu submitted documentary evidence to support his claims of financial capacity, including:
a.Commonwealth Bank statement of balance, in the applicant’s name;
b.International funds transfer details;
c.Financial documents for the applicant’s parents’ business;
d.Identity documents;
e.Academic and enrolment records;
f.Evidence of health cover to 15/03/2019;
g.Personal submissions about the applicant’s circumstances;
h.A statutory declaration dated 23 January 2019 from Ravinderpal Singh and Mandeep Kaur and a Westpac Statement for a Home Loan Account in their joint names, showing available funds of $140,134.50.
i.A heavy vehicle driver licence (NSW);
Oral evidence at hearing
At the hearing the Tribunal acknowledged an estimate provided by Mr Sidhu through his migration agent that calculated his expenses for the 12 months of his intended stay to be $36,665; comprising $20,290 in living expenses, $1,000 for travel expenses and $15,375 for course fees.
The Tribunal asked Mr Sidhu if course fees for the specified period of study had already been paid. The Tribunal explained that the specified period of study related to the time of the visa application. Mr Sidhu said all fees had been paid. The Tribunal had estimated the relevant expenses therefore totalled $21,290, comprising $20,290 for living expenses and $1,000 for travel
The Tribunal noted that Mr Singh had submitted a Commonwealth Bank letter in his name showing he had an account with a a credit balance of $11,677.19. The Tribunal said that these funds could be included as part of the amount of funds required, however they were insufficient on their own. Mr Sidhu needed to demonstrate genuine access to further funds of $9,613. The applicant accepted these calculations as correct.
The Tribunal said it had noted that Mr Singh’s parents had sponsored his studies until now, and questioned why, for the next year’s study, he had indicated he would be relying on friends he had known for four years to support him through his Masters study.
Mr Sidhu submitted that his friends, Mr Ravinderpal Singh and Ms Mandeep Kaur, whom he had known for four years in Ballina, NSW, were old friends of his family. While his father had supported his earlier studies in Australia, the families had agreed Mr Singh would provide support for his next enrolment. Mr Sidhu said he had previously worked at Mr Singh’s restaurant in Ballina.
The Tribunal asked about the nature of the sponsor relationship and whether the sponsor was a family relative. The applicant confirmed the parties were not related. The Tribunal stated the income of the sponsors could not be relied on to provide support as the relevant Instrument required evidence of income from a parent, spouse or de facto partner.
The Tribunal asked what the arrangement was for providing funds from the sponsor for expenses, and Mr Sidhu said his friend had already paid some of his MBA tuition fees and would give him money if he needed it. In response to the Tribunal’s questioning he said there was no loan agreement, Mr Singh would simply pay money into his account if he needed it.
The Tribunal raised a concern that Mr Sidhu had only known the sponsor for four years and that the funds required might not be accessible over the full course of the year.
Mr Sidhu stated if he needed anything for living the sponsor would give it to him. The Tribunal questioned Mr Sidhu on how he paid for things now, and whether he was working and he said no, he used to work but not now. The Tribunal asked what he was living on now, and he stated he was working 20 hours in a restaurant, that he lived on his earnings and if that wasn’t enough he could go to his sponsor.
The Tribunal asked if Mr Sidhu had access to an account in which the sponsor held the relevant funds, perhaps via a keycard or other access facility and he said no, he did not have direct access.
The Tribunal noted the relevant account from which any funds would be drawn was an offset account and asked what would happen if the loan funds in it were needed for something other than his studies. The applicant said he was working 20 hours a week and his family would step in to support him.
The Tribunal also heard from a witness, the sponsor Mr Singh. He gave evidence that he was an Australian citizen and his family knew the applicant’s family in India. He confirmed the account with the funds available to Mr Sidhu was one of two offset accounts he held that were secured to his family home. He also ran a business.
The applicant’s migration agent suggested to the Tribunal that the sponsor would be willing to transfer funds to the applicant’s account immediately.
Conclusions
The Tribunal has weighed the evidence provided by Mr Sidhu about his access to funds to and finds that he has $11,677.19 available in his bank account on which the Tribunal can rely as evidence of financial capacity. The Tribunal however does not have before it convincing evidence that Mr Sidhu has access to funds sufficient to meet the remaining $9,613 in expenses for his intended period of stay in Australia (365 days).
Mr Sidhu has known the proposed sponsor for four years, and despite claims his family has been acquainted with Mr Singh’s family in India for generations, the Tribunal has taken into account only the four year relationship, as Mr Sidhu has not provided evidence to support the longer-term claim. The Tribunal is not convinced this is a reliable basis on which to claim secure financial sponsorship and demonstrate sufficient access to relevant funds.
Mr Sidhu has already begun studying his MBA and has not put forward evidence that the sponsor is actively supporting him in terms of living expenses, but has provided evidence that Mr Singh has funded some of his tuition fees for the course. There is no formal contract or arrangement for sponsorship between the parties for any purpose. Mr Sidhu says if he needed money he would go and ask for it and the sponsor would give him money. The Tribunal said it had noted that Mr Sidhu was projecting the financial support into the future and asked if he was receiving any money currently, or had received any money from his sponsor for living expenses. Mr Sidhu stated he was not and had not. The Tribunal notes Mr Sidhu’s statements that he relies on his own income to meet his expenses. The Tribunal concludes that Mr Singh has not provided funds for Mr Sidhu’s living expenses and has not established at the time of this decision that he will be funding them in the future.
The Tribunal is not satisfied that Mr Singh and Ms Kaur have funds of an unencumbered kind consistent with their statutory declaration that they have sufficient financial resources to bear all the educational living expenses incurred by Mr Sidhu during his stay. They have provided evidence of a home loan account with a significant offset facility secured to their family home that allows them to draw down on equity. The Tribunal is not convinced this facility will be available to the applicant as he needs it. He has no direct access to the account, no agreement to access it and the Tribunal notes that the sponsor owns a business. In the absence of a formal agreement, it is open to Mr Singh at any time to redirect the funds for other purposes without any reference to Mr Sidhu.
The Tribunal has considered Mr Sidhu’s agent’s suggestion that the relevant funds could be transferred to Mr Sidhu’s personal account without further delay. The Tribunal has carefully considered the suggestion, but concludes that the applicant has had considerable time since his enrolment on 15 January 2019 to arrange his affairs adequately and establish financial capacity and has not, at the time of this decision, done so.
The Tribunal has considered Mr Sidhu’s evidence about how he does fund his living expenses and concludes that he is funding them himself, and will continue to do so while working in Australia. The Tribunal notes Mr Sidhu initially stated that he was not working, and then stated that he was working 20 hours, but the Tribunal considers this might have been the result of a misunderstanding in the hearing about whether he was working for the sponsor currently. The Tribunal notes that Mr Singh’s previous sponsor, his family, is not now involved in supporting his expenses. The Tribunal has considered his evidence that the families agreed the proposed arrangement was the better plan, but is not convinced by it. The applicant’s decision to rely on a relationship with Australian citizens he has known for four years to fund his expenses is barely credible. The Tribunal concludes that at minimum, this is not a sound basis on which to claim genuine access to sufficient funds to meet the financial requirement and genuine access to the relevant kinds of funds.
On the basis of the above, the Tribunal is not satisfied that the applicant meets cl.500.214(3).
Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.214.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Meredith Jackson
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.

[2019] AATA 1860

20 March 2019

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