Awasthi (Migration)

Awasthi (Migration) [2021] AATA 2492 (21 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gautam Awasthi
CASE NUMBER:  1914922
HOME AFFAIRS REFERENCE(S):          BCC2019/1478773
MEMBER:Peter Newton
DATE:21 June 2021
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 21 June 2021 at 5:19pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – genuine access to funds – LIN 19/198 – tuition fees – living costs and expenses – bank account statement – affidavit from parents – 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 May 2019 (Department’s Decision) 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 23 March 2019. 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 in Schedule 2 of the Migration Regulations 1994 (Regulations) because the delegate was not satisfied that applicant provided sufficient information or evidence demonstrating the applicant has access of the funds to meet the required travel expenses, living costs and annual course fees while staying in Australia for the purpose of undertaking study.
The applicant appeared before the Tribunal on 11 March 2021 to give evidence and present arguments. The hearing was held during the COVID-19 pandemic and conducted by telephone. The Tribunal exercised its discretion to hold the hearing by telephone having regard to the time that has elapsed since the applicant applied for and was refused the student visa and the need for the applicant to have certainty in relation to his visa status and study rights. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick and the delay to the matter if the hearing was not to be conducted by telephone. During the hearing the Tribunal was satisfied that the applicant heard and understood the outline given at the commencement of the hearing as to how the hearing wold proceed and the questions asked during the hearing. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.
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 the applicant. The issue in the present case is whether the applicant has sufficient funds to meet ravel expenses, living costs and annual course fees of his current and proposed future course of study.
Genuine access to funds (cl.500.214)
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 (Instrument).
During the hearing on 11 March 2021 the applicant said he is currently studying the Certificate IV in Automotive Mechanical Diagnosis course. The Overseas Student Confirmation of Enrolment (CoE) the applicant provided for that course records a course start date of 7 December 2020 and end date of 9 August 2021. During the hearing the applicant said that $5,500 in tuition fees remains owing for his current course of study.
During the hearing the applicant indicated that if or when he completes his current course of study, he proposes to study the Diploma of Automotive Technology course. The CoE for that course the applicant provided records a start date of 6 September 2021 and an end date of 11 July 2022. The applicant said that if or when he completes this proposed future course of study, he intends to return to your home country.
During the hearing the applicant said that $8,500 in tuition fees remains owing for his proposed future course of study. He said he does not intend to undertake any overseas travel for the period he requires the student visa.
The evidence given by the applicants establishes the applicant is intending to remain in Australia for a period of more than 12 months to complete his current and proposed future course of study. Pursuant to clause 500.214 and LIN19/198, the applicant is required to provide evidence that demonstrates he has genuine access to sufficient funds to meet to meet his living costs and expenses for the period of his intended stay in the amount of $21,041 plus $14,000 to meet the unpaid tuition fees for the applicant’s current and proposed future courses of study.
Accordingly, the applicant is required to provide evidence that demonstrates he has genuine access to $35,041 to meet your living costs and expenses and outstanding course fees for the duration of his intended stay in Australia and the cost of a return trip to the applicant’s home country.
Prior to the hearing, the applicant provided evidence that his parents financially support the applicant whilst in Australia. The applicant’s parents have provided an affidavit declaring that: “we have sufficient amount of funds to support our son and authorized him to utilize this and when required.” The affidavit declares “our annual income is sufficient to bear and support them for all their expenses”.
The applicant’s parents’ affidavit served before the hearing does not identify the funds available to them or provide particulars of their annual income and expenses or provide any document, such as a bank statement or statement of annual income and expenses, demonstrating that they have sufficient funds to meet the applicant’s living costs and expenses and outstanding course fees for the duration of the applicant’s intended stay in Australia.
Prior to the hearing, the applicant provided a statement that his parents have a fixed deposit of 20,00,000 INR equivalent to 35,087 AUD. The applicant did not provide any documents or evidence, such as statements from the bank where the applicant’s parents hold the fixed deposit or an affidavit from his parents demonstrating that they hold a fixed deposit of 20,00,000 INR equivalent to 35,087 AUD or sufficient funds to meet the applicant’s living costs and expenses and outstanding course fees for the duration of his intended stay in Australia.
After the hearing and on 12 March 2021 the Tribunal sent to the application a request for further information pursuant to section 359A of the Act. Following that request, the applicant has provided further information comprising a letter to the Tribunal dated 16 March 2021, an account statement from Canara Bank for the period 20 February 2021 to 12 March 2021 (for an account held by the applicant’s father), a statement from the Commonwealth Bank of Australia dated 16 March 2021 (for an account held by the applicant) and an affidavit from the applicant’s parents in India made 15 March 2021 deposing to their savings, income and consent to provide access to their finances to meet all the applicant’s expenses in Australia.
The Tribunal is satisfied the applicant has provided evidence of financial capacity in accordance with the Instrument. The evidence establishes the applicant has access to sufficient funds to meet to meet his living costs and expenses, outstanding course fees for the duration of his intended stay in Australia and the cost of a return trip to the applicant’s home country.
Based on 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 evidence referred to above establishes the applicant has access to sufficient funds to meet to meet his living costs and expenses, outstanding course fees for the duration of his intended stay in Australia and the cost of a return trip to the applicant’s home country.
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 evidence referred to above establishes the applicant’s parents have sufficient income and savings which they will make available to the applicant for the purpose of meeting his living costs and expenses, outstanding course fees for the duration of his intended stay in Australia and the cost of a return trip to the applicant’s home country.
As the Tribunal is satisfied the applicant will have genuine access to the funds, cl.500.214(1) is met.
Conclusion on cl.500.214
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.
Peter Newton
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.
7 Subclause 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.
8 Subclass 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.
…
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.

[2021] AATA 2492

21 June 2021

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