Asgar Khan (Migration)

[2017] AATA 1628

Asgar Khan (Migration) [2017] AATA 1628 (24 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Asgar Khan

CASE NUMBER:  1619715

DIBP REFERENCE(S):  BCC2016/3253383

MEMBER:Lilly Mojsin

DATE:24 August 2017

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 24 AUGUST 2017 AT 10:42AM

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Financial capacity – Evidence of access to sufficient funds – Affidavit from his family attesting to funds – Evidence of bank transfers

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 500.214

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 November 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 3 September 2016.

3. 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.

4. 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 the applicant had failed to provide any evidence of access to funds for the first 12 months.

5. The applicant appeared before the Tribunal on 17 August 2017 to give evidence and present arguments. The applicant was assisted in relation to the review by his registered migration agent.

   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.

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 application, 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 IMMI 17/012, which is attached to this decision.

10. The applicant has provided confirmation of enrolment for a Master of Business Administration commencing on 10 July 2017 and ending on 31 December 2018. The Tribunal has assessed the amount required as

    ·The total tuition fee is $23,100, the applicant has paid $4 170, 12 month pro rata cost of tuition fee is $15 144.

    ·Travel costs are $1000

    ·Living costs of $19,830 as specified by item 5 in IMMI 17/012.  .

11. Therefore the applicant is required to produce evidence of financial capacity of  $35 974.

12. The applicant has provided an Affidavit from his father attesting to having sufficient funds to support his son and attesting to his son having access to those funds. A Commonwealth bank statement in the applicant’s name shows the transfer on 7 August 2017 of $7 700 and a transfer on 21 April 2017 of $2 000 and details of education loan of 23 00 000 [$45 400]  rupees from Bank of India.

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 has provided evidence of $45 400 being available. This amount exceeds the required $35 974.

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

    Will the applicant have genuine access to the funds?

16. 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.

17. The applicant’s father has provided an Affidavit attesting to having sufficient funds and the applicant has provided a copy of his bank account showing transfers to him from his father.

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

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

20. 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

21. 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.

    Lilly Mojsin
    Member

    
    

    Attachment – IMMI 17/012 – Financial capacity instrument (extract)

    2.SPECIFY under subclause 500.214(4) of Schedule 2 to the Regulations and for the purposes of subclause 500.214(3) of Schedule 2 to the Regulations, that the applicant seeking to satisfy the primary criteria of a Subclass 500 (Student) visa (Primary Applicant) must give to the Minister evidence of financial capacity of the following requirements:

    a)sufficient funds to meet the following costs or expenses of the Primary Applicant, as specified in item 6 of this Instrument:

    i.travel expenses; and

    ii.living costs and expenses as specified in item 5 of this Instrument; and

    iii.course fees covering:

    A.if the duration of the Primary Applicant’s stay in Australia is less than 12 months—the total course fee; or

    B.if the duration of the Primary Applicant’s stay in Australia is longer than 12 months—the first annual course fee; and

    b)sufficient funds to meet the following costs or expenses of each applicant seeking to satisfy the secondary criteria of a Subclass 500 (Student) visa (Secondary Applicant) making a combined application with the Primary Applicant, as specified in item 6 0of this Instrument:

    i.travel expenses; and

    ii.living costs and expenses as specified in item 5 of this Instrument; and

    iii.all school fees for each school aged dependant as specified in item 7 of this Instrument; or

    c)the Primary Applicant’s parents, spouse or de facto partner have personal annual income that is above an amount specified in item 8, and evidenced as specified in item 9 of this Instrument; or

    d)the Primary Applicant’s completed AASES form, as defined in regulation 1.03 of the Regulations; or

    e)for a Primary Applicant sponsored by the Department of Foreign Affairs and Trade—a letter of support from the Department of Foreign Affairs and Trade; or

    f)for a Primary Applicant sponsored by the Department of Defence—a letter of support from the Department of Defence.

    3.SPECIFY under subclause 500.313(4) of Schedule 2 to the Regulations and for the purposes of subclause 500.313(3) of Schedule 2 to the Regulations, that a Secondary Applicant must give to the Minister the evidence of financial capacity that corresponds with the circumstances applicable to the Secondary Applicant in the Schedule to this Instrument.

    4.SPECIFY under subclause 590.216(4) of Schedule 2 to the Regulations and for the purposes of subclause 590.216(3) of Schedule 2 to the Regulations, that the applicant seeking to satisfy the primary criteria of a Subclass 590 (Primary Student Guardian Applicant) visa must give the Minister evidence of financial capacity of the following requirements:

    a)sufficient funds to meet the following costs or expenses of the applicant, as specified in item 0 of this Instrument:

    i.travel expenses; and

    ii.living costs and expenses as specified in item 5 of this Instrument; and

    b)sufficient funds to meet the following costs or expenses of the Primary Student Guardian Applicant as specified in item 6 of this Instrument:

    i.travel expenses; and

    ii.living costs and expenses in item 5 of this Instrument; and

    iii.course fees covering:

    A.if the duration of the Primary Student Guardian Applicant’s stay in Australia is less than 12 months—the total course fee; or

    B.if the duration of the Primary Student Guardian Applicant’s stay in Australia is longer than 12 months—the first annual course fee; and

    c)sufficient funds to meet the following costs or expenses of each member of the family unit applicant making a combined application with the Primary Student Guardian Applicant, as specified in item 6 of this Instrument:

    i.travel expenses; and

    ii.living costs and expenses in item 5 of this Instrument; and

    iii.all school fees for each school aged dependant as specified in item 7 of this Instrument; or

    d)the Primary Student Guardian Applicant’s spouse’s or de facto partner’s annual income that is above an amount specified in item 8, and evidenced as specified in item 9 of this Instrument.

    5.SPECIFY for each applicant that satisfies the minimum requirements specified in item 2, item 3 and item 4 of this Instrument:

    a)if the applicant’s intended stay in Australia is for a period of 12 months or longer, the annual living costs and expenses amounts for the first 12 month period is:

    i.for a student—$19,830 AUD;

    ii.for a student guardian—$19,830 AUD;

    iii.for a spouse or de facto partner—$6,940 AUD;

    iv.for a dependent child—$2,970 AUD; or

    b)if the applicant’s intended stay in Australia is for a period that is less than 12 months, the living costs and expenses amount is the pro rata equivalent of the annual amounts specified in paragraph a) of this item.

    6.SPECIFY the following evidence of financial capacity that satisfies the requirements specified in item 2, item 3 and item 4 of this Instrument:

    a)money deposit with a financial institution;

    b)loan with a financial institution;

    c)government loans;

    d)scholarship or financial support.

    7.SPECIFY for the purposes of subclause 500.214(3) of Schedule 2 to the Regulations, for each Secondary Applicant who is a child of school-age, the evidence to be provided by the applicant of either:

    a)the annual minimum amount for schooling of $8000 per annum; or

    b)if the applicant’s intended stay in Australia is for a period that is less than 12 months, the amount specified for schooling is the pro rata equivalent of the annual amount specified in paragraph a) of this item; or

    c)enrolment in a course at a State or Territory government school where the fees have been waived and the applicant meeting the primary criteria is enrolled in a course as a:

    i.doctoral degree student; or

    ii.Foreign Affairs student; or

    iii.Defence student; or

    iv.Commonwealth sponsored student.

    8.SPECIFY the following annual income amounts that satisfies the minimum requirements specified in item 2, item 3 and item 4 of this Instrument:

    a)$60,000 AUD for an individual Primary Applicant for a Subclass 500 (Student) visa; or

    b)$70,000 AUD if:

    i.one or more Secondary Applicant is seeking to satisfy the secondary criteria for a Subclass 500 (Student) visa; or

    ii.for Subclass 590 (Student Guardian) visa applicants.

    9.SPECIFY as evidence of annual income amount that satisfies the requirements specified in item 2, item 3 and item 4 of this Instrument, official Government documentation of personal income that has been issued in the 12 months immediately before the application is made.

    10.In this Instrument, the pro rata equivalent of an annual amount 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.

    …

    Schedule

Item	Circumstances applicable to the Secondary Applicant	Evidence and requirements of financial capacity
1	i.       the Secondary Applicant’s application is combined with a Primary Applicant’s application; and     ii.       the Primary Applicant does not provide a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument.	Evidence specified in item 6 of this Instrument, to meet the costs and expenses of the Primary Applicant as specified in item 2 of this Instrument.
2	i.       the Secondary Applicant’s application is combined with a Primary Applicant’s application; and     ii.       the Primary Applicant provides a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument; and    iii.       the letter of support indicates that the relevant department will meet the living expenses of each Secondary Applicant.	The letter of support.
3	i.       the Secondary Applicant’s application is combined with a Primary Applicant’s application; and     ii.       the Primary Applicant provides a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument; and    iii.       the letter of support indicates that the relevant department will not meet the living expenses of each Secondary Applicant.	Evidence specified in item 6 of this Instrument, to meet the costs and expenses of the Secondary Applicant as specified in item 2 of this Instrument.
4	i.       the Secondary Applicant’s application is not combined with a Primary Applicant’s application; and     ii.       the Primary Applicant does not provide a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument.	Sufficient funds to meet the following costs or expenses, as specified in item 6 of this Instrument:      i.     travel expenses; and     ii.     living costs for each applicant and the Student visa holder, as specified in item 5 of this Instrument; and    iii.     course fees for the Student visa holder covering: A.   if the duration of the stay in Australia is less than 12 months—the total course fee; or B.   if the duration of the stay in Australia is more than 12 months—the first annual course fee; and    iv.     all school fees for each school aged dependant of the Student visa holder, as specified in item 7 of this Instrument.
5	i.       the Secondary Applicant’s application is not combined with a Primary Applicant’s application; and     ii.       the Primary Applicant provides a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument; and    iii.       the the letter of support indicates that the relevant department will meet the living expenses of each Secondary Applicant.	The letter of support.
6	i.       the Secondary Applicant’s application is not combined with a Primary Applicant’s application; and     ii.       the Primary Applicant provides a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument; and    iii.       the letter the letter of support indicates that the relevant department will not meet the living expenses of each Secondary Applicant.	Sufficient funds to meet the following costs or expenses, as specified in item 6 of this Instrument:      i.     travel expenses: and     ii.     living costs for each applicant, as specified in item 5 of this Instrument; and    iii.     all school fees for each school aged dependant of the Student visa holder, as specified in item 7 of this Instrument.
7	i.       the Primary Applicant’s parents, spouse or de facto partner have personal income that is above an amount specified in item 8 of this Instrument.	The evidence specified in item 9 of this Instrument.