Ansari (Migration)

[2023] AATA 2120

Ansari (Migration) [2023] AATA 2120 (28 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Bisma Maudood Ansari

CASE NUMBER:  2212437

HOME AFFAIRS REFERENCE(S):          BCC2021/402504

MEMBER:Wendy Banfield

DATE:28 June 2023

PLACE OF DECISION:  Canberra

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

·cl 500.214 of Schedule 2 to the Regulations.

Statement made on 28 June 2023 at 1:40pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity requirement – LIN 19/198 – sufficient funds to meet costs and 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 Home Affairs on 8 August 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 March 2021. 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.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.214 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they were not satisfied the applicant had demonstrated genuine access to funds as required to meet the financial capacity requirement of the Regulations.

4. The applicant appeared before the Tribunal on 30 May and 28 June 2023 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 has provided evidence of sufficient funds to meet his costs and expenses while holding the visa and whether he has genuine access to those funds.

7. 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.

8. 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?

9. 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.

10. The primary applicant Bisma Maudood Ansari submitted evidence of funds held by her father in an HBL Savings Account. The evidence consisted of an ‘Account Maintenance Certificate’ for account number 0068-00396576-01, and a bank statement printout for the account indicating a balance on 19 June 2023 of PKR 9,005,611.51.

11. The Tribunal had some concerns about the documents submitted, including that they are not on bank letterhead, despite HBL being a major banking institution in Pakistan. The applicant attended a second hearing in which the concerns were put to her for comment. The applicant referred to the stamps affixed to the documents and stated her belief that they are genuine. She was asked if she was confident, they would be found to be genuine if verified by the Tribunal or the Department and she said she was. On that basis, the Tribunal is prepared to accept the applicant had provided evidence of funds.

12. The Tribunal is satisfied the funds are in the specified form, that being money deposits with a financial institution.

13. 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?

14. The applicant provided a letter of offer for a Bachelor of Early Childhood Education and Leadership at Victoria University. The Tribunal had advised the applicant it would accept a letter of offer prior to her obtaining a Confirmation of Enrolment certificate. The course is due to commence on 31 July 2023 and end on 21 June 2024. The Tribunal has calculated that applicable period of study from those dates which is the period for which she is required to demonstrate financial capacity.

15. Based on the duration of the course, the applicant must demonstrate financial capacity and genuine access to an amount sufficient to cover living costs and expenses, remaining tuition fees and travel costs for herself over the relevant period of intended study. For 327 days this amount is $46,940 and is made up of:

    ·pro rata living costs and expenses for the primary applicant: $18,850

    ·outstanding course fees for the primary applicant: $27,090

    ·travel expenses: $1,000

16. As the applicant has provided evidence of available funds in an amount equivalent to $47,620.49, the Tribunal is satisfied that the applicant meets cl 500.214(2).

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

    Will the applicant have genuine access to the funds?

18. 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.

19. The evidence of funds provided are held by the applicant’s father, Maudood Ahmed Ansari. The applicant submitted a family relationship certificate to demonstrate the family relationship. The Tribunal is satisfied the applicant will have genuine access to funds held in the account of her father in an HBL savings account.

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

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

22. 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

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

    ·cl 500.214 of Schedule 2 to the Regulations.

    Wendy Banfield
    Member

    
    

    Attachment – LIN 19/198 – Financial capacity instrument (extract)

    6Subclause 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.

    …

    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.