1726921 (Migration)

1726921 (Migration) [2020] AATA 3305 (24 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1726921
MEMBER:David Barker
DATE:24 April 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 24 April 2020 at 3:57pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – genuine access to funds – genuine temporary entrant as student – enrolment in a course already completed in India – non-commencement of courses – gaps in studies – relevance of studies to future employment – maintaining ongoing residence in Australia – employment income – financial support from family – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.211, 212, 214; r 1.03
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 28 October 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 25 September 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 they were not satisfied the applicant had provided sufficient evidence of financial capacity to meet her education, travel and living expenses.
The applicant appeared before the Tribunal on 3 March 2020 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a national of India and is [age] years old. She came to Australia in October 2015 on a Subclass 573 Student visa. At that time, she was enrolled to undertake a Master of Professional Accounting (MPA). Documents provided with the visa application show that in her home country, she completed a Bachelor [course] in [year] and a Master of Business Administration (MBA) in [year].
The applicant’s responses on her application for the Subclass 500 Student visa indicate that at the time of application, she had enrolled in an extension course to complete an MPA.
The Department delegate’s decision record, a copy of which was provided with the review application, states that at the time the applicant lodged their application for the Subclass 500 Student visa they were required, as part of the application process, to provide evidence of financial capacity. The delegate noted that no documentation to evidence financial capacity had been uploaded at the time of lodgement or at the time of the delegate’s decision in August 2017. The delegate determined that the applicant therefore failed to satisfy the provisions of subclause 500.214(3) and therefore did not meet cl. 500.214.
In the written statement provided with the review application, the applicant states that due to carelessness and a lack of sincerity, the consultant, who is not a registered migration agent and who she had engaged to assist with the application, forgot to attach evidence of her access to funds to support the studies she was at that time undertaking. She states that after the visa was refused, she became depressed and anxious and was initially not able to think about anything. She states that notwithstanding this she managed to return to her studies and successfully completed her one remaining subject in the MPA course. The applicant has provided evidence to the Tribunal of her successful completion of this course.
The Provider Registration and International Student Management System (PRISMS) student record indicates the applicant finished the MPA in December 2018. The Tribunal has been provided with a Confirmation of Enrolment (CoE) indicating the applicant, on 2 March 2020, enrolled in a Graduate Certificate in Management (Learning) with [College 1], which was due to commence on 20 March 2020 and finish on 28 March 2021. The CoE indicates the total tuition fee for the course is $10,500, with an initial pre-paid tuition fee of $2,625 being paid.
In her written statement, the applicant states that because of her previous consultant’s mistake she felt like her life and her future were at stake and that she was unsure what she should do in the future. She states that she was advised she could continue to study whilst awaiting the outcome of her review application and so she arranged for a CoE for an MBA. She states that worry about her visa uncertainty resulted in her being unable to focus on her studies, and as a consequence she did not commence the MBA as she didn’t want to waste time on the same course that she had already undertaken in her home country. She contends elsewhere in the statement that her previous MBA was unsatisfactory because it was not practical in its approach and that this was why she studied the MPA. The applicant stated that after a period in which she was very depressed she decided to try and recommence her studies, but that different colleges where she applied for courses rejected her application, telling her this was because she had a cancelled CoE and she had yet to get a successful decision from her review application before the Tribunal. The applicant states that she was unsuccessful gaining admission to MBA courses with a specialisation in international business. She said that at the very last day she managed to enrol in a Graduate Certificate in Management, with the goal of following this up by continuing with an MBA course in Australia if she was successful getting a further Student visa. She states that her future depends upon getting the Student visa, as doing the management course followed by an MBA in Australia will make a huge impact on her employment prospects back in India.
At hearing, the applicant said her brother, who lives in [Country 1], financially supports her education and related expenses and that she also has some income from part-time employment in [Business 1]. She said she owns between $500 and $600 per week employment, which she has had for the last two years. She said that her brother has paid everything since 2015 and that he recently sent her $6,000. She said that she sometimes also gets money from her relatives in Melbourne and relatives in India. She said this money is transferred into her [Bank 1] account.
In relation to what she had been doing since completing the MPA at the end of 2018, at hearing the applicant said she enrolled into an MBA, but as it involved the same sort of subjects as the MBA she had previously completed in India, and because she was suffering from depression, anxiety and homesickness, she did not commence this MBA. When asked for further clarification as to what she had been doing since she completed the MPA in December 2018, the applicant said that she had been waiting for her review hearing. She said she had spent her time living with friends in Sydney, visiting relatives in Melbourne and working part-time in [Business 1].
As to why she had only enrolled in a course the day before the hearing, on 2 March 2020, at hearing the applicant said she enrolled in the course because her agent had suggested she do so.
The Tribunal asked the applicant why emails from [two named colleges], provided in support of her claim to have tried unsuccessfully to enrol in further MBA courses, which were not as similar to that which she previously undertook in India, lacked identifying information as to who the emails were about, what date they were sent and by whom. In response, the applicant said that she was provided the emails by her agent the day before the hearing and provided no further explanation as to why they appeared to be partial copies of emails without the aforementioned identifying information that would usually be evident on an email. She also provided no further information about when she had attempted to enrol in further MBA courses or how MBA courses that she claimed to have tried to enrol in were different to that which she had enrolled in but did not attend.
In response to a question at hearing as to whether she had returned to India since she came to Australia in 2015, the applicant said she travelled to India in 2016 but has not returned there since and has not felt able to do so since her visa application was rejected.
As to why she needs to undertake a further MBA Graduate Certificate in Management (Learning), given she already has a [specified degree], MBA and MPA, the applicant said she wants a more qualifications and that the MBA course she previously enrolled in was very similar to what she had previously studied. In response to the Tribunal asking the applicant for further clarification why she needs more qualifications, she said she wants to study in Australia and wants knowledge from Australia so that she can have a better future. She said that she wants to get her own business or a good job in India and to do so she needs to understand money and to study more. She said that she wants to learn more about management.
In relation to the anxiety and depression she reports suffering from, the applicant said she was on antidepressant medication for around eight or nine months after her doctor prescribed it in 2017. She said that counselling was recommended for her at that time but that she did not follow that recommendation.
Particulars of information put to the applicant pursuant to s.359AA of the Act
The Tribunal put particulars of information to the applicant, pursuant to s.359AA of the Act, after first explaining to her this information would, subject to her comment and response, provide the reason, or part of the reason, for affirming the decision under review. The Tribunal explained to the applicant that she could request time to consider her response and that the Tribunal would consider any such request.
The particulars of the information put to the applicant was that, notwithstanding the evidence she had provided of her enrolment the day before the hearing in a Graduate Certificate in Management, a recent review of the PRISMS records shows that she had not completed any courses of study since November 2018 and that MBA programs in which she had enrolled were cancelled in March 2019 and August 2019 due to her non commencement of study.
The Tribunal explained to the applicant that this information was relevant because the significant gap in her study history gave rise to concern as to whether she had a genuine intention to maintain her residency in Australia temporarily for study purposes and that if it was not satisfied she met required temporary entrant criterion, it would affirm the decision to refuse her application for a Subclass 500 Student visa.
The Tribunal consented to the applicant’s request for further time to consider her response, indicating it would provide her 14 days to provide comments in response to the information put to her pursuant to s.359AA of the Act. The Tribunal invited the applicant to also provide evidence to support her claims regarding her psychological problems, employment income and brother’s financial circumstances. On 16 March 2020 the Tribunal received from the applicant some medical records, financial records and evidence of her connection to her brother and his wife. The Tribunal notes that no written statement responding to the particulars of information put to the applicant pursuant to s.359AA or putting into context the aforementioned documents or otherwise making further submissions in relation to issues arising in this review were included in the further evidence received from the applicant since the hearing.
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.
In the general introduction to the hearing at which the applicant appeared, the Tribunal explained that criteria which must be satisfied for the grant of a Subclass 500 Student visa include whether an applicant is studying, or has a current offer of enrolment, whether they satisfy genuine temporary entrant criterion and may include whether they can demonstrate that they have genuine access to funds to support their education and associated living expenses for the proposed duration of their studies. These three factors constitute the issues in the present case.
Enrolment
Clause 500.211 relevantly requires that at the time of this decision, the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.
‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.
The applicant has provided evidence of enrolment in a Graduate Certificate in Management (Learning) with [College 1], which was due to commence on 20 March 2020 and finish on 28 March 2021. The Tribunal is satisfied this is a registered course, as defined in r.1.03, and that the applicant has enrolled as a full-time student.
Therefore, the Tribunal is satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is met.
Temporary entrant criterion
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)        the applicant’s circumstances; and
(ii)       the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)      any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)       of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:
- the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
- the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
- if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
- any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but, rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The relevance of circumstances in the applicant’s home country
The Tribunal accepts the applicant has parents residing in India and a brother and sister-in-law residing in [Country 1]. The Tribunal is satisfied the applicant maintains a connection with her parents in India and brother in [Country 1], as there is evidence of her father, [named], remitting funds to her as recently as February 2020 and her brother providing financial records and a letter evidencing his offer of financial support also in February 2020.
The applicant has returned to India on one occasion, between [November] 2016 and [December] 2016. In response to a comment from the Tribunal that the lack of time she has spent in her home country since arriving in Australia in 2015 could be indicative of her not maintaining ties with her home country that would provide her a strong incentive to return there, the applicant said that she has been unable to return to India since her visa was refused. The Tribunal was not persuaded by this contention, as whilst the Bridging visa A issued to the applicant at the time of her application for the Student visa did not include return rights if she departed from Australia, it was open to the applicant to apply for a Bridging visa B, which, if granted, would have committed her to return to Australia.
There is no evidence before the Tribunal in relation to opportunities that may exist for the applicant in India stemming from her familial connections or other factors. There is no evidence before the Tribunal which demonstrates the applicant intends to depart from Australia after completing the course in which she is currently enrolled. Her evidence at hearing is that she intends to follow up the Graduate Certificate in Management (Learning) course by undertaking a further MBA course in Australia.
As to whether the applicant has sound reasons for not undertaking the study in her home country or region if a similar course is already available there, the applicant has presented no specific claims as to research she undertook regarding the availability and suitability of graduate management courses in India or the surrounding region.
I accept the applicant’s current employment in [Business 1] and her general economic circumstances in Australia do not present as a significant incentive for her not to return to her home country.
With regard to military service commitments that would present as a significant incentive for the applicant not to return to her home country, I accept the applicant has no such commitments providing them with a disincentive to return to India.
With regard to political and civil unrest in the applicant’s home country, I note there are no submissions or evidence before the Tribunal that would establish she has concerns regarding these issues which provide them with a disincentive to return to India.
With regard to the applicant’s circumstances in her home country relative to the circumstances of others in that country, there is no evidence before the Tribunal that would suggest this factor provides the applicant with an incentive to not return to India.
The Tribunal notes that following the completion of the MPA, which taken at face value was the rationale for her application for the Student visa which is the focus of the current review, and at a time she claims she was affected by depression, anxiety and homesickness, the applicant elected to remain in Australia rather than returning to India to seek support from family members there. The medical evidence she has provided indicates she received required family support from aunts in Melbourne. In the view of the Tribunal, this presents as an indicator that the applicant did not experience a need for familial support as an incentive to return to her home country.
The relevance of the applicant’s potential circumstances in Australia

With regard to the applicant’s ties with Australia which would present as a strong incentive to remain in Australia, at the hearing the applicant indicated she has relatives in Melbourne with whom she spent time since completing the MPA in December 2018 and also friends with whom she lives in Sydney which the Tribunal is satisfied provide a social support network in Australia. The extent to which this social network provides the applicant with an incentive to maintain residency in Australia is unclear. The Tribunal has reviewed the application for the Subclass 500 Student visa and notes that the applicant did not identify that she had family members who were resident in Australia. The Tribunal would infer from this that her relatives in Melbourne are not close family members and therefore may not provide a strong incentive for her to maintain her residency. However, the strength of her social support network in Australia appears to have been sufficient for her to not perceive a need to return to India at a time she had completed the MPA, lacked clear further educational goals and was suffering from depression, anxiety and homesickness. In the view of the Tribunal, this is indicative of a strong social support network, which in turn is a factor providing the applicant with an incentive to maintain residency.
I have concerns that the applicant is seeking to use the Student visa program to circumvent the intentions of the migration program. In making this finding, I have placed weight on the lack of convincing reasons as to why the applicant remained in Australia following the completion of the MPA in December 2018. It is to her credit that she completed this course, despite the refusal in October 2017 of her application for the further Student visa and following the onset of depression and anxiety. However, the applicant has not provided a persuasive reason as to why she then remained in Australia for over 12 months without undertaking further study. She claims this was because she was awaiting the outcome of her review before the Tribunal. It is unclear why this provided a reason for her not to return to her home country, especially given her reported mental health difficulties and homesickness. The intention of the migration program is for a temporary Student visa to equip a person with skills, knowledge and experience which may improve their vocational or business prospects in their home country. The Tribunal is not satisfied the applicant’s actions since completing the MPA in December 2019 reflect this intention.
As to whether the Student visa is being used to maintain ongoing residence, the Tribunal accepts the applicant was diagnosed with depression and anxiety following the refusal of her visa application and that she was prescribed antidepressant medication. The Tribunal notes the applicant did not follow a treatment recommendation that she access counselling support and, at hearing, she indicated she initially took the antidepressant medication for between eight and nine months. Following the hearing, the applicant provided further medical evidence from a treating general practitioner, which indicates she was last prescribed antidepressant medication in February 2018 and that she was experiencing medical issues affecting her ability to study from 1 December 2017 to 1 March 2018 and from 2 July 2018 to 2 October 2018.
The Tribunal is not however persuaded this adequately explains the 14-month gap in the applicant’s studies from December 2018 to March 2020. The Tribunal notes the applicant was invited to comment on and respond to concerns arising from this study gap, which was put to her pursuant to s.359AA of the Act during the hearing, but did not specifically do so, beyond providing the aforementioned further medical evidence and other requested evidence regarding her and her brother’s financial circumstances. The Tribunal has concerns that the applicant did not enrol for further study until the day before her hearing before the Tribunal on 3 March 2020, and also in relation to documents she has provided in support of a claim to have attempted to enrol in further alternate MBA courses following the cancellation of her enrolment in an MBA course she had enrolled in after completing the MPA course. The Tribunal accepts the applicant saw no benefit from studying an MBA course that essentially duplicated an existing qualification she held. The Tribunal does not however consider reliable the partial copies of emails with identifying information removed, which were provided to the applicant by her agent the day before the hearing to support her claims. The Tribunal is not satisfied the applicant has provided a credible explanation for significant gaps in her studies during 2019 and considers she maintained her residency in Australia during this period for reasons other than study.
With regard to whether the applicant has entered into a relationship of concern for Student visa purposes, I have placed no weight on this factor as there is no evidence to demonstrate the applicant has entered any such sort of relationship.
With regard to the applicant’s knowledge of living in Australia, I am satisfied that through residing here for over four and a half years, she has a sufficient understanding of Australian society to undertake the proposed further period of study.
I am not however persuaded, given the haste apparent, from the evidence provided by the applicant, in her decision to enrol in the Graduate Certificate in Management (Learning) that she has demonstrated a realistic level of knowledge and the level of research that she could be expected to undertake into the proposed course of study, if acquiring new vocational skills was her actual priority.
The value of the course to the applicant’s future
As to the applicant’s intended course of study in management, I acknowledge that this is not entirely unrelated to the applicant’s previous study in business-related courses. However, given her previous higher education studies in a [degree course], MBA and MPA, I am not persuaded of the need for it prior to her being able to pursue her stated goal of seeking a good job, or to open her own business in her home country. This is because I am not persuaded that she lacks a sufficient level of knowledge and skills from her current qualifications such that she could not return to her home country to pursue her claimed career goals.
As to whether the applicant is seeking to undertake a course that is consistent with her current level of education, I have concerns that the applicant has enrolled in a relatively brief inexpensive course at a significantly lower academic level than the previous higher education sector qualifications she has achieved.
In relation to whether the management certificate course will assist the applicant to obtain employment or improve employment prospects in her home country, as discussed, I am not satisfied further study in the management course is necessary. I am satisfied the applicant’s intention for enrolling in this course was so that she would satisfy a visa criterion rather than to improve her employment or business prospects in her home country.
With regard to the relevance of the course to the applicant’s past or proposed future employment either in her home country or a third country, the applicant has worked in the food service industry in a non-managerial role for periods whilst in Australia and I am not satisfied the management course has clear relevance to this sort of employment. With regard to the applicant’s stated future employment and career goals in India, getting a good job or opening a business, I consider these goals to be insufficiently detailed to be satisfied the Graduate Certificate in Management (Learning) would have relance to the applicant’s proposed future employment either in her home country or a third country.
With regard to remuneration the applicant could expect to receive in her home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study I am not persuaded the evidence put forward by the applicant demonstrates that her proposed study in the management course would enhance the remuneration she could expect over and above the expectations she has on the basis of her existing qualifications.
The applicant’s immigration history
The Tribunal is aware an applicant’s immigration history refers both to their visa and travel history. There is no evidence that the applicant has had any previous visa refusals or cancellations, or that she failed to comply with visa conditions during travel to third countries. I accept there is no evidence to suggest the applicant has not complied with visa conditions during the time she has resided in Australia.
Conclusion upon genuine temporary entrant criterion assessment
In making a decision in the particular circumstances of this matter, I have considered all the available evidence, including that the applicant is currently enrolled in a Graduate Certificate in Management (Learning). However, for the reasons outlined above, I do not accept the applicant is undertaking the current study for reasons other than her wish to maintain her residency in Australia. Whilst I acknowledge the applicant has experienced some mental health difficulties, the evidence suggests this was during a period in 2018 in which she struggled, with eventual success, to complete an MPA. I am not persuaded these mental health difficulties explain the gap in the applicant’s studies throughout 2019, which appears to be a time she was ambivalent about study and aimless, but nonetheless motivated to maintain her residency in Australia. I accept the applicant’s claim that at the time she applied for the Student visa in September 2017, she had provided a previous consultant with documents associated with her claim to have access to finances to support her study whilst she completed the MPA. However, the role of the Tribunal is to take a fresh look at her visa application and consider whether she meets relevant criteria at the time of this decision. I am not persuaded the applicant is a genuine applicant for entry and stay as a student but rather is using the Student visa program as a pathway to maintaining residence in Australia. The Tribunal is not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Genuine access to funds
Out of thoroughness, the Tribunal has considered whether the applicant has genuine access to funds to support her education and associated living expenses during her proposed period of study in Australia.
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 LIN 19/198, which is attached to this decision.
At the time of the delegate’s decision in October 2017, the Department was not satisfied the applicant produced evidence of sufficient funds to meet travel expenses, living costs and annual course fees. The delegate noted that no evidence of funds was provided with the visa application. Further to this, the delegate was not satisfied evidence as to the annual income of a spouse, de facto partner or parent could be taken into account when determining her financial capacity, as there was no evidence available that addressed this issue.
The applicant contends that she had provided evidence that she had genuine access to funds from a suitable source to a consultant who was assisting her who purported to be a registered migration agent, when in fact they were not. The applicant provided the Tribunal with a copy of the documents she claimed had been given to the aforementioned person and not forwarded by that person to the Department with her Student visa application. The Tribunal explained that it is taking a fresh look at her visa application and that it would consider the funds she needed to show she had access to at the present time, given her current course enrolment.
The applicant has provided confirmation of enrolment for a Graduate Certificate in Management (Learning), which is due to commence on 30 March 2020 and run until 28 March 2021. The total tuition fees for this course are $10,500 of which she has paid $2,625.
As to the applicant’s living costs during the remaining period she will be in Australia, LIN 19/198 provides that if the applicant’s intended stay in Australia is for a period of 12 months or more, the living costs and expenses amount is an amount of $21,041. If the applicant intends to stay in Australia for a period of less than 12 months – the pro rata equivalent of annual living costs is applicable. The Graduate Certificate in Management (Learning) will finish on 28 March 2021 and the applicant gave evidence she intends to undertake further study in an MBA with a focus on international business following completion of the Management (Learning) Graduate Certificate. The Tribunal has however focused on the current course in which she has enrolled and estimated her living expenses on the basis of her returning to her home country within a month of completing the course. The Tribunal has therefore estimated the applicant’s living expenses encompassing a period from the present day until 28 March 2021, which amounts to $19,715.
As to the overall costs and expenses the applicant will be required to meet, the Tribunal has assessed the amount required as follows:
·The tuition fees are estimated as $7,875;
·Travel costs are $1,000;
·Living costs of $19,715 as specified by item 6 in LIN 19/198 for the applicant.
Therefore, the applicant is required to produce evidence of financial capacity of $28,590.
The applicant has provided account statements from her [Bank 1] account (xx2189), dated
15 March 2020, indicating the balance in her account as of that date was $77.45; and a [Bank 1] account (xx3270), dated 15 March 2020, which states the balance in that account on that date was $203.92.
The applicant has provided the Tribunal with the following documents in support of her claim to have genuine access to funds to support her education and associated living expenses for her intended period of study:
·A scanned copy of an [account] with a [Country 1] financial institution, [Bank 2], in the name of her brother, [Brother A], dated 15 March 2020, which states as of
2 March 2020 the balance in that account was [local currency amount]. The applicant has also provided evidence of balances in other [Bank 2] accounts held by [Brother A], which show that as of 29 February 2020, he had savings of [local currency amount] and an online loan debit amount of [local currency amount].
- The applicant has also provided screenshots from a [Bank 1] mobile phone app, which shows a $5,975 amount was deposited into an account, which is not identified, on
  14 February 2020. On the same date an amount of $25 was transferred into a [Bank 1] account xx3270. The deposited amount has the descriptor ‘[father’s name] Ref’, who is the father of applicant. There are further deposits into this account of $4,975 on
  18 February 2019, with the descriptor ‘[father’s name] Ref’; and, $2,000 on 18 July 2018, with the descriptor ‘[Brother A] Ref’.
·The [Bank 1] mobile phone app screenshots show other periodic transfers of small amounts to a [Bank 1] account xx3270 and previous amounts deposited into a different [Bank 1] account held by the applicant, (xx2189), one of which is for an amount of $4,976, also on 18 February 2019.
·A document titled ‘[business name]’[1] regarding an entity ‘[Business 2], which identified two directors, [Mr A] and [Ms B]; and a [Certificate of Incorporation] of a [Company] – ‘[Business 2]’
·A certified copy of a [Marriage Certificate] regarding the marriage of [Ms B] and [Brother A].
·A scanned copy of a handwritten letter from [Brother A], dated 28 February 2020, confirming that he is fully supporting his sister, the applicant, financially in relation to her fees and living costs.
·A copy of [a payment summary], for the tax year to [April] 2017, in relation to an employee [named] showing a total income of [local currency amount].
·A [Bank 3] account statement for an account held by [Ms B], showing an account balance on 1 September 2017 of [local currency amount].
·A document from an unidentified financial institution, dated 15 August 2017, for an account in the name of [Ms B], with a balance as of 1 August 2017 of [local currency amount].
·A [Bank 2] account statement for an account held by [Brother A], showing an account balance on 5 July 2017 of [local currency amount].
·A [Bank 2] account statement for an account held by [Brother A], showing an account balance on 5 July 2017 and 7 August 2017 of [local currency amount]. The Tribunal notes that financial documents pertaining to the 2017 period are copies of documents the applicant intended the Department to consider as part of their processing of her visa application. The Tribunal does not consider them relevant to an assessment of her current access to funds to support her studies due to the time that has now elapsed since 2017.
[1] [Deleted.]
The Tribunal finds the funds held by the applicant’s brother, [Brother A], on or around
[2]
15 March 2020, which are potentially available to support the applicant’s studies, amount to [local currency amount], the equivalent of $45,002.99.[2] The Tribunal is satisfied the applicant has provided the Tribunal with evidence of her connection to her brother, [Brother A], and a letter from him stating that he will financially support her studies in Australia. In combination with her own savings, the Tribunal calculated the overall funds potentially available to the applicant amount to $45,284.36.
On the basis of the above, 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?
The applicant has provided evidence of around $45,284.36 being available for her use. This amount exceeds the required $28,590. For these reasons, the Tribunal is satisfied that the applicant meets cl.500.214(2).
Will the applicant have genuine access to the funds?
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.
At hearing, the applicant claimed that her brother, [Brother A], has paid for everything since 2015. She provided further oral evidence somewhat inconsistent with this, claiming she has also received some financial support from relatives in Melbourne and relatives in India and that she has also worked in paid part-time employment for the past two years. Notwithstanding this, she has provided a written letter from her brother stating that he is fully supporting her financial needs. After considering this evidence, the Tribunal is satisfied the applicant has nonetheless based her claim to have genuine access to sufficient funds to meet her education and associated expenses through financial support offered to her by her brother, [Brother A]. The Tribunal is not persuaded by this claim, as there is no evidence that her brother has provided her financial support since July 2018.

The evidence which the applicant has provided after the hearing does not support her claim at hearing that her brother recently sent her financial support amounting to $6,000. Whilst funds close to this, $5,975, were deposited into an account on 14 February 2020, this money was deposited by her father rather than her brother. It is unclear what account this amount was deposited into and it does not appear to have been either of the applicant’s [Bank 1] accounts that she has disclosed to the Tribunal, as the screenshots of the [Bank 1] phone app show transactions from the unidentified account to both of these accounts, namely xx3270 and xx2189.
The Tribunal is not satisfied the claim that the applicant’s brother pays for everything and that he fully supports her financially is supported by the available evidence. As mentioned previously, there is no evidence to demonstrate her brother has provided financial support to the applicant since July 2018, or that the funds provided at that time were sufficient to meet all of her education and related expenses. With respect to financial support from her father, the Tribunal is satisfied these funds are from an appropriate source, being a parent. But in the circumstance where there is no information about her parents’ overall financial position or the extent of financial assets that they have available for her use, the Tribunal is not satisfied the financial support provided by her father in February 2019 and February 2020 demonstrate the applicant has genuine access to adequate funds to support her education and related expenses for her intended period of study in the courses she is currently enrolled in.
On this basis, the Tribunal is not satisfied the applicant will have genuine access to the funds and as a consequence the provisions of cl.500.214(1) are not met.
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.
David Barker
Member

Attachment – LIN 19/198 – Financial capacity instrument (extract)
6 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.
(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 – AUD7,362 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
(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.
10 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.
11 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.

[2020] AATA 3305

24 April 2020

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