Aryal (Migration)
[2023] AATA 1010
•5 April 2023
Aryal (Migration) [2023] AATA 1010 (5 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Suraj Aryal
REPRESENTATIVE: Mr Sanjeev Prasad Pandey (MARN: 1172267)
CASE NUMBER: 2208596
HOME AFFAIRS REFERENCE(S): BCC2020/2629971
MEMBER:Penelope Hunter
DATE:5 April 2023
PLACE OF DECISION: Sydney
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 05 April 2023 at 10:37am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – genuine access to funds – evidence of bank funds provided upon review – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.214STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 May 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 12 November 2020. 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 (Cth) (the Regulations) because the applicant had not provided evidence to satisfy the delegate that he had sufficient funds to meet his costs and expenses during the period of his extended stay in Australia.
The applicant was schedule to appear before the Tribunal via telephone on 31 March 2023. On 30 March 2023, he provided a request for postponement and a medical certificate that indicated he would be unfit for work for the period 30 March 2023 to 31 March 2023.
The Tribunal consented to the postponement of the hearing and the hearing was reschedule to 4 April 2023. On 3 April 2023, the Tribunal received a further request from the applicant to postpone the hearing on the basis that he had only just engaged representation. The Tribunal declined the request.
The applicant appeared via telephone before the Tribunal on 4 April 2023 to give evidence and present arguments. The applicant was represented in relation to the review and his representative also attended the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant has genuine access to funds and satisfies cl 500.214 of Schedule 2 to the Regulations.
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.
On 20 October 2021 and again on 23 February 2022, the Minister, via the delegate, wrote to the applicant and requested that the applicant give evidence of financial capacity in accordance with cl 500.214(3). The applicant did not respond to the request and the delegate went on to refuse the visa application.
The Tribunal received an application for review from the applicant on 13 June 2022.
In support of the review application, the applicant has provided to the Tribunal the following relevant documents:
i.The decision record of the delegate.
ii.Confirmation of Enrolment (CoE) in a Graduate Diploma of Management with course dates from 3 April 2023 to 20 March 2025, total tuition fee $16,000.
iii.Verification Letter of Overseas Student Health Cover.
iv.Letter from the Commonwealth Bank, dated 30 March 2023, regarding account of the applicant XXXX6871, balance at close of business $30,000.99.
v.Submissions from his migration agent.
vi.Statement of financial support from the applicant’s sister, Usha Aryal Pantha.
vii.Relationship verification letter.
viii.Passport o the Usha Aryal Pantha.
ix.Evidence of permanent residency of Usha Aryal Pantha.
x.Evidence of previous studies by the applicant.
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.
The applicant has provided evidence of funds held in his Commonwealth Bank account. A money deposit with a financial institution satisfies the requirement of cl 10 of the Instrument.
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 Instrument specifies that the applicant must demonstrate sufficient funds to meet the identified costs and expenses for himself, and if necessary, each member of his family unit, as follows:
i.Living costs; and
ii.Course fees; and
iii.Travel expenses.
Living Costs
The CoE submitted by the applicant for study in the Master of Graduate Diploma of Management indicates that he intends to stay in for a period of more than 12 months. The living costs as set out in the Instrument are $21,041 for a period of 12 months or more. The applicant has no dependents included in the visa application. It is assessed that the applicant is to demonstrate total living costs in the amount of $21,041 in accordance with the Instrument.
Course Fees
According to the Instrument, if the duration, or the remainder of the applicant’s period of study in Australia is more than 12 months, the applicant is required to demonstrate funds for the course fees for the first 12 months of the period of study.
As the applicant did not complete the study he proposed when he applied for the visa, the current CoE he has provided is found by the Tribunal to be his first period of study. His enrolment is for two years with a total course fees of $16,000. This equates to an amount of $8,000 for his first period of study. The applicant told the Tribunal at the hearing that he had already paid $2,000 towards these costs. The Tribunal confirmed this payment was recorded in the CoE that he has submitted. It is therefore assessed that the applicant is required to demonstrate $6,000 in course fees.
Travel expenses
This item is for the cost of the applicant travelling to return to his home country from Australia at the conclusion of his visa. It is noted that the travel costs for an airfare to India can vary but the reasonable cost, estimated by the Tribunal in the sum of $1,200.00.
Total expenses
In accordance with LIN 19/198, the Tribunal finds that the applicant’s total course fees, living costs and travel expenses for his remaining period of his course of primary study are ;
Living costs $21,041.00
Course fees $6,000.00
Travel expenses $1,200.00
Total $28,241.00
The balance presented to the Tribunal of funds held by the applicant in his Commonwealth Bank account is the sum of $30,000.99. This is in excess of the amount that the applicant is required to demonstrate.
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.
The main source of he funds relied upon by the applicant is his sister. She has provided a statement of support that the funds are not a loan. The applicant’s sister holds a visa entitling her to permanent residence of Australia and is working in aged care. As the funds are held in the account of the applicant and they are not a loan, the Tribunal is satisfied that the applicant will have genuine access to the funds, cl 500.214(1) met.
Accordingly, the Tribunal is satisfied that the applicant meets cl 500.214.
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
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.
Penelope Hunter
MemberAttachment – 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.
7Subclause 500 (Student) visa—secondary applicants
(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 AUD72,592.
(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 AUD72,592.
(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.
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Judicial Review
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