TAMANG (Migration)

[2020] AATA 5024

TAMANG (Migration) [2020] AATA 5024 (15 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr SONAM TSHERING TAMANG
Mrs SAPANA TAMANG

CASE NUMBER:  1810450

HOME AFFAIRS REFERENCE(S):          BCC2018/987027

MEMBER:Gabrielle Cullen

DATE:15 September 2020

PLACE OF DECISION:  Sydney

DECISION: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.

Statement made on 15 September 2020 at 11:53am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – financial capacity – genuine access to funds – numerous money transfers from family members – enrolment evidence provided upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 500.211, 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 Home Affairs on 8 April 2018 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 1 March 2018. 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 8 April 2018 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 applicant had not provided any verifiable information or documentation evidencing financial capacity.

4. Prior to the hearing the applicants provided the following documents to meet the financial requirements and being a genuine temporary entrant as a student:

   ·Statement from the applicant in which he claimed he was currently enrolled in a Bachelor of Tourism and Hospitality Management from 13 November 2017 to 6 November 2020, why he changed from studying the Bachelor of Business Accounting to a Bachelor of Tourism and Hospitality Management, reasons for studying his current course and information as to his family and economic ties to India.

   ·Copies of the applicants’ passports including evidence the applicant’s father is Prem Bahadur Tamang.

   ·Evidence the first and second named applicants are married.

   ·A CoE dated 15 November 2019 indicating the applicant is enrolled to study a Bachelor of Tourism and Hospitality Management from 11 November 2019 to 6 November 2020 at a cost of $12,000.

   ·Statement of results achieved in the Bachelor of Business Accounting in 2016 and 2017.

   ·Evidence the first named applicant completed a Certificate IV in Accounting in 2014/5, Diploma of Accounting in 2015 and an Advanced Diploma of Accounting in 2016.

   ·Income Certificate from the Government of Sikkim dated 20 February 2014 indicating, Mr Prem Bahadar Tamang, the applicant’s father had a total income of 40,00,000 INR per annum.

5. The first and second named applicants appeared before the Tribunal by telephone on 13 May 2020. The applicants’ registered migration agent did not attend the hearing.

6. The Tribunal raised with the applicants that the matter before it is whether the first named applicant meets the enrolment criteria as required by cl.500.211 which is required for the grant of a student visa. It also raised with them that another matter before it is whether the first named applicant meets the requirement of cl.500.214. The Tribunal outlined the requirements of cl.500.214 and IMMI 19/198.

7. At hearing the first named applicant indicated he is not currently enrolled and said it was because he could not pay the fees as there was a problem last month. He said he was in the process of paying them and needed 1 day. Via the process outlined in s.359AA the Tribunal raised that PRISMS records indicate the first named applicant is not currently enrolled, and enrolment ceased on 23 April 2020. The first named applicant responded orally and stated that he has paid the fees and needs a day to provide the COE.

8. The Tribunal also raised with him that he had not provided any evidence of sufficient funds or access to those funds as required by cl.500.214. The Tribunal noted that what he had provided as evidence of financial capacity from 2014 being his father’s income was outdated and not from the Government of India. It outlined with him that if income is provided as evidence of financial capacity, it needed to be within12 months before the date of application and the evidence needed to be from a Government source. It noted the income was not sufficient and did not meet the requirements of the Ministerial Instrument as evidence of financial capacity.

9. The applicant said his aunt and father provide him with funds. As to how he accesses the funds he said his aunt owns a restaurant and she sends money to their bank account. The Tribunal requested evidence of such transfers.

10. The applicants were given until 15 May 2020 to provide evidence of enrolment, academic transcript of subjects completed in 2019/20, evidence of fees paid, evidence of financial capacity and access to the funds.

11. Following the hearing the applicant provided the following evidence:

    ·Current COE indicating the applicant is enrolled in a Bachelor of Tourism and Hospitality Management from 20 July 2020 to 25 June 2021 at a cost of $15,000. The PRISMS record confirms enrolment in this course.

    ·Academic Transcript for the Bachelor of Tourism and Hospitality dated 13 May 2020 indicating the applicant was given credit in 9 courses, passed 2/4 units in Semester 3, 2017; passed 0/2 units in Semester 1 2018, passed 1/3 in Semester 2, 2018, passed 2/3 in Semester 1 2019, passed 2/2 in Semester 2, 2019 and 2/2 in Semester 3, 2019.

    ·Commonwealth Bank account of the second named applicant evidencing transfer into the account of $4,000 on 13 November 2019 and transfer of $3,000 to another account on 13 November 2019, transfer into the account of $6,300 on 26 September 2019 and transfer of $5,000 to another account on 13 November 2019, transfer from Sirjana Shrestha of $5,050 on 3 December 2019 and transfer for university fees of $5,000 on 5 December 2019.

    ·Statement from the ANZ Progress Saver Account in the applicant’s name from 11 December 2017 to 11 June 2018 showing transfer into the account of $500 on 6 February 2018, offshore telegraphic transfer received on 22 February 2018 of $3,767, and transfer to Academies Australas of $2,500 on 28 March 2018.

    ·Certificate evidencing transfer of $7,500 to the applicant from Prem BDR Tamang for College fees on 2 June 2019.

    ·Transfer Certificate dated 5 March 2014 for funds to Zanith Business Academy for the applicant.

12. On 19 May 2020 the Tribunal sent the following email to the applicants via their representative, and attached LIN/198:

    At hearing the Tribunal expressly requested you provide evidence of financial capacity that satisfies the requirements of the Ministerial Instrument; Lin 19/198. After the hearing you provided evidence of enrolment in a General English course, followed by the Bachelor of Tourism and Hospitality Management from 20 July 2020 to 25 June 2021 at a cost of $15,000. According to Lin 19/198 and your enrolment you are required to provide evidence in a form specified in section 10 of that instrument, that you have sufficient funds available to you for a period of 12 months to meet course fees of $15,000, living expenses of $28,403 and $2,000 for return travel to India, totalling $45,403 or evidence of income of $72,592 of the primary applicant’s parent, spouse or de facto partner in the 12 months immediately before the application is made. To date the evidence as to financial capacity provided does not appear to meet the requirements of cl.500.214.

    Please find attached LIN 19/198.

    The Tribunal gives you until 22 May 2020 to provide further evidence if you so wish. After this time a decision will be made on the evidence before the Tribunal.

13. On 27 May 2020 the applicants provided the following:

    ·Letter from the State Bank of India dated 26 May 2020 indicating Phul Subba has several fixed deposit accounts with the bank, with a credit balance of 37549INR equivalent to $711AUD in her savings bank and 3500000INR equivalent to $66,267AUD (xe.com) in her fixed deposit account.

    ·Resubmitted Affidavit of Support dated 21 February 2014 from Phul Maya Subba, the applicant’s Aunt and Prem Bahadur Tamang, the applicant’s father as outlined above.

14. On 10 June 2020 the applicant provided an updated Student Visa Financial Support statement by Phul Maya Subba dated 9 June 2020 indicating she will provide a level of financial support to the applicant, her nephew, to live and study in Australia to the sum of $69,740. She acknowledges the applicant will have full access to these funds for course fees and living expense, plus travel to and from Australia.

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 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.

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, 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.

18. In the present case, at hearing the Tribunal expressly 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?

19. The requirements for evidence of financial capacity for cl.500.214(3) are set out in IMMI 19/198.

20. As to the costs associated with studying the Bachelor of Tourism and Hospitality Management from the date of the expected visa grant being 25 September 2020, the Tribunal has assessed the amount to be as follows.

    ·tuition fees to complete the course are $15,000.

    ·travel expenses being a one-way ticket for the applicants to return to India on completion of the course which is approximately equivalent to the sum of $1,000 for each applicant, totalling $2,000.

    ·living costs specified in IMMI 19/198 are $21,041 for the applicant for the 12-month period and $7,362 for the second named applicant for the 12-month period. The COE indicates that the applicant is expected to complete the course on 25 June 2021. The Tribunal calculates he will require living costs from the expected date of the visa grant being 25 September 2020 to 25 July 2021, being the date of course completion plus one month to depart. This is 10 months and therefore living costs for this period are $17,534 for the first named applicant and $6,135 for the second named applicant, totalling $23,669.

21. In accordance with IMMI 19/198, the Tribunal finds that the applicants’ total course fees, living costs and travel costs for the 12-month period are as follows:

    Course fees $15,000

    Living costs  $23,669

    Travel costs  $2,000

    Total  $40,669

22. The applicant is required to give evidence of funds sufficient to meet expenses totalling $40,669.

23. The applicant has provided evidence of a money deposit in the name of his aunt held with State Bank of India in the sum of $66,967. The applicant’s aunt has indicated in the student visa financial support statement that she will support the applicant to the value of $69,740. The total available of $66,967 is more than the required amount of $40,669.

24. 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 19/198. 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 applicant has provided evidence that the funds are held in a money deposit with the State Bank of India. The Tribunal accepts the applicant has provided evidence of funds that meets the requirements of Section 10 IMMI 19/198.

25. Therefore, on the basis of the evidence before it the Tribunal is satisfied that the applicant meets cl.500.214(3).

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

26. The applicant’s aunt, Phul Maya Subba has indicated in her student visa financial support statement that she will support the applicant’s study in Australia to the sum of $69,760 and has provided evidence of funds available in the sum of $66,967, the variance occurring due to the change in the exchange rate. The amount of $66,967 held by the applicant’s aunt and available for the applicant’s study in Australia exceeds the required amount of $40,669.

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

    Will the applicant have genuine access to the funds?

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

29. The applicant’s aunt has indicated by way of a student visa financial support statement that she is providing financial support to the applicants to study and live in Australia in excess of the required amount of $40,669. The applicant has provided evidence of numerous money transfers to their accounts in Australia from India for their education and living expenses although the name of the sender on the documentation is not clear. The applicant claims they have been sent to him by his aunt and his father. The Tribunal accepts from the evidence of numerous transfers in the past for their study and living expenses and statement of support from the applicant’s aunt that the applicants will have access to the funds provided by the applicant’s aunt. From the information provided, the Tribunal is therefore satisfied the applicant will have genuine access to the funds and that cl.500.214(1) is met.

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

31. 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

32. 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