TALUKDAR (Migration)

[2019] AATA 6143

TALUKDAR (Migration) [2019] AATA 6143 (25 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammad Jewel TALUKDAR
Mrs Najia Afrin NIPA

CASE NUMBER:  1717394

HOME AFFAIRS REFERENCE(S):           BCC2017/1971014

MEMBER:Gabrielle Cullen

DATE:25 October 2019

PLACE OF DECISION:  Sydney

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

·cl.500.214 of Schedule 2 to the Regulations.

Statement made on 25 October 2019 at 1:59pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Advanced Diploma of Leadership and Management – financial requirements – evidence of financial capacity provided – course fees – living costs – travel expenses – genuine access to funds – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.214

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 July 2017 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 3 June 2017. 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. On 24 July 2017 the delegate refused to grant the visa on the basis that the first named applicant did not satisfy the requirements of cl.500.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the fist named applicant had not provided evidence of their financial capacity when applying for the visa..

4. As at the date of this decision the first named applicant has provided the following relevant evidence to support his claims.

   ·Marriage Certificate confirming the applicants are spouses.

   ·CoE indicating the applicant is enrolled in an Advanced Diploma of Leadership and Management from 23 September 2019 to 21 September 2020 with course fees of $8,280. PRISM records confirm his enrolment.

   ·Invoice from the education provider dated 1 October 2019 showing the applicant has paid $2000 towards the Advanced Diploma of Leadership and Management plus $70 for materials.

   ·Letter from Islami Bank Bangladesh dated 15 October 2019 indicating Md. Firoze Talukdar, who the applicant claims is his brother, maintains a savings account with a balance of 3,763,803BDT, equivalent to $65,232AUD (xe.com) and a corresponding bank statement indicating Md. Firoze Talukdar held this amount as at 27 June 2019.

   ·Letter from CBA dated 18 October 2019 indicating the applicant holds $15,569 in an account in his name.

   ·Student Visa Financial Support Statement from the applicant’s brother dated 23 October 2019 indicating he is financially supporting the applicant and his family to study and live in Australia to the sum of $65,000.

   ·Transfer receipt indicating $24,000 was sent to the applicant from MD Firoze on 22 October 2019. The applicant has also provided his Commonwealth bank statement  from 3 September 2019 to 18 October 2019 showing cash deposits of $9,000 on 3 October 2019 and $8,265 on 3 September 2019 which he claims is evidence of funds received

   ·Evidence Md Firoze Talukdar is the applicant’s brother, including the applicant’s passport and the birth certificate of Md. Firoze Talukdar showing they have the same parents.

   ·Letters and academic records from his current and previous education providers.

   ·GTE statement including comments as to how his bother supports him to study in Australia.

5. The first named applicant appeared before the Tribunal on 22 October 2019 to give evidence and present arguments. The applicants were assisted in relation to the review by their registered migration agent. The Tribunal outlined the requirements of cl.500.214 and IMMI 18/010 and requested evidence of financial capacity as per cl.500.214(3). The first named applicant advised that his brother is financially supporting them. As to fees paid he said he had paid $2,000 towards the Advanced Diploma of Leadership and management and the Tribunal requested he provide evidence of this from the education provider. The Tribunal questioned how he accesses the funds provided by his brother and he said his brother transfers money through fast remit and he deposits it in his account. The Tribunal requested evidence of this and that he is the brother of Md Firoze Talukdar. He was given until COB on 24 October 2019 to provide the evidence requested.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets cl.500.214.

8. 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.

9. In the present case, the Minister has required the applicant to give evidence of financial capacity in accordance with cl.500.214(3). At the hearing the Tribunal made this request.

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

10. 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.

11. As to the costs associated with studying the Advanced Diploma of Leadership and Management until 21 September 2020, the Tribunal has assessed the amount to be as follows.

    ·the tuition fee to study Advanced Diploma of Leadership and Management for a period of 12 months is $8,280 which includes a $70 non-tuition fee. The evidence indicates the applicant has paid $2070 towards this course and the remaining fees to be paid in the first 12 months are $6,210

    ·travel expenses being a one way ticket for the first named applicant and his spouse to return to Bangladesh on completion of his course which is equivalent to the sum $2,000.

    ·living costs are $20,290 per year for the first named applicant, $7,100 for his spouse as specified in IMMI 18/010. As the applicant’s course ends on 21 September 2019 and giving the applicants a month to depart the living costs pro rata are $20,179 and $7,061 respectively, amounting to $27,240.

12. In accordance with IMMI 18/010, the Tribunal finds that the first named applicant’s total course fees, living costs and travel costs for the remainder of his stay in Australia are as follows:

    Course fees $6,210

    Living costs  $27,240

    Travel costs  $2,000

    Total  $35,450

13. The first named applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $35,450.

14. The applicants have provided evidence of a money deposits held in the first named applicant’s CBA account in the sum of $15,569 as at 18 October 2019 and 763,803BDT, equivalent to $65,232AUD, in his brother’s account at Islami Bank Bangladesh as at 15 October 2019. These total $80,801 which is more than the required amount of $35,450.

15. All of the funds required by an applicant to meet their relevant costs and expenses must also be in the form that satisfies section 10 of IMMI 18/010. This specifies a limited range of evidence of financial capacity which is required, namely a money deposit with a financial institution, a loan with a financial institution, government loan, financial support or scholarship. The first named applicant has provided evidence that the funds are held in money deposits with the CBA and Islami Bank Bangladesh. The Tribunal accepts the applicant has provided evidence of funds that meets the requirements of Section 10 IMMI 18/010.

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

    Are there sufficient funds available to meet costs and expenses while the applicant holds the visa?

17. The first named applicant has provided evidence that Md Firoze Talukdar is his brother. Md Firoze Talukdar has indicated in the student visa financial support statement that he is prepared to support the first named applicant to the sum of $65,000 to live and study in Australia.

18. The applicant has $15,569 in his own account which he has indicated are for his and his wife’s living and study in Australia.

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

    Will the applicant have genuine access to the funds?

20. To meet cl.500.214(1), the Tribunal must also be satisfied that the first named applicant will have genuine access to the funds referred to above.

21. The first named applicant has provided evidence indicating his family relationship to his brother, Md Firoze Talukdar. Md Firoze Talukdar has indicated by way of a student support statement that he is providing financial support to the first named applicant to study and live in Australia. There is evidence of cash deposits into the first named applicant’s CBA account in 2019 and evidence of a money transfer from Md Firoze Talukdar to the first named applicant in the sum of $24,000 on 22 October 2019, albeit on the day of the hearing. The Tribunal accepts the applicant will have access to the funds provided by his brother.

22. The Tribunal also accepts the applicant will have access to the funds in his name in his CBA account.

23. On the basis of the evidence before it the Tribunal is satisfied the applicant has genuine access to the funds.

24. As the Tribunal is satisfied the first named applicant will have genuine access to the funds, cl.500.214(1) is met.

25. Accordingly, the Tribunal is satisfied that the first named applicant meets cl.500.214.

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

    DECISION

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

    ·cl.500.214 of Schedule 2 to the Regulations.

    Gabrielle Cullen
    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.