Bachi (Migration)

[2023] AATA 572

Bachi (Migration) [2023] AATA 572 (20 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mahadev Reddy Bachi

CASE NUMBER:  2203832

HOME AFFAIRS REFERENCE(S):          BCC2021/1553011

MEMBER:Michael Biviano

DATE:20 February 2023

PLACE OF DECISION:  Melbourne

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 20 February 2023 at 3:15 pm

CATCHWORDS  
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – term deposits from the ICICI Bank and the updated affidavits from his parents provided – adequate evidence of genuine access to funds provided– decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, 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 28 February 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 10 August 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 the applicant failed to provide evidence of Genuine Access to Funds (GAF) in accordance with the LIN 19/198 Financial capacity instrument (Instrument).

4. The applicant appeared before the Tribunal on 2 February 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 GAF to meet cl 500.214.

   Genuine access to funds (cl 500.214)

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).

9. In this case, the decision record of the delegate of the Department dated 28 February 2022, which was provided to the Tribunal by the applicant, confirms that the applicant made the current application for a Student (Class TU Subclass 500) visa on 10 August 2021 and the visa application was refused on the basis that the applicant did not provide sufficient evidence of GAF to satisfy cl 500.214 (Decision Record).

10. The applicant is a 28-year-old Indian national who came to Australia on a student visa. The applicant had formerly studied a Diploma and Advanced Diploma of Information Technology (Networking). The Decision Record confirmed the delegate had calculated the costs of the course, travel home and living expenses equated to $28,073 and the applicant had not provided to the delegate evidence of financial capacity despite being repeatedly asked to do so.

11. The applicant gave evidence the first he became aware of the requests to provide financial information as to his capacity was after he received the decision and he stated that his agent did not provide him with details of any requests made by the Department for evidence of financial capacity. As no information was provided to the delegate, the delegate found that the financial capacity did not satisfy the financial requirement as set out in the Instrument.

12. The applicant is now seeking to obtain a student visa to study a Graduate Diploma of Management at the Campbell Institute, which had a course start date of 31 October 2022 and course end date of 27 October 2024. The tuition fee is $14,000 of which $1,400 had been pre-paid leaving a balance of $12,600. Prior to the hearing the applicant submitted to the Tribunal a Confirmation of Enrolment (COE) for that course.

13. The applicant as evidence of his financial capacity submitted 2 term deposits, one held by his mother and the other held by his father each with 1 million rupees, which mature in August and September 2023. Each term deposit equates to approximately A$17,400 on the exchange rate. The applicant submitted his mother’s and father’s identification cards and an affidavit from his father supporting his child and that he will have access to those funds. There was no corresponding affidavit from his mother.

14. The applicant also submitted other documents in support of his application including submissions, job advertisements for jobs he could take up with his qualifications, and his academic qualifications in Australia confirming he had completed the Diploma and Advanced Diploma of Information Technology (Networking).

15. At the hearing, the applicant gave evidence that his mother was supporting his studies, but due to ill health she had been unable to provide a supporting affidavit.

16. At the hearing the applicant sought a further opportunity to file additional documents in support of his application due to the concern regarding the currency of the documents he was relying on.

17. The Tribunal directed the applicant to file any further supporting documentation within 7 days of the hearing.

18. The applicant submitted within time affidavits from both his mother and father financially supporting him and making available their funds for his tuition, living and travel expenses.

19. The applicant claims that he has financial capacity to complete his studies and based on the updated documentation the applicant can access his parents’ term deposits for the purposes of tuition fees, living expenses and travel required by the Instrument. Those term deposits equate to A$34,800.

    Has the applicant provided evidence of financial capacity in accordance with the Instrument?

20. 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.

21. The Tribunal notes that the COE for the Graduate Diploma of Management course functions as a record of a student’s enrolment status in an approved course and as proof of enrolment for the purpose of cl 500.211. Critically it provides enrolment details (e.g. course commencement and conclusion dates, name of student, name of course, name of education provider and date of creation) and course costs of an applicant for a student visa and is evidence of financial capacity as outlined in cl 6(2) of LIN 19/198 Financial capacity instrument for the purpose of cl 500.214.

22. As discussed above the course is expected to conclude on 27 October 2024, which is more than 12 months’ time. Under the Instrument the tuition fees for the first 12 months of the course need to be considered. Based on the course being a 2-year course and the tuition fees being $14,000 for the entire course, over the period of the first 12 months the tuition fees on a pro rata basis amount to half that fee being $7,000. The applicant in evidence confirmed that the return airfare to his home country was A$2,000. When one considers the Instrument and the applicant’s evidence the applicant needs to show financial capacity to pay the following expenses in accordance with the Instrument:

Item.	Particulars	Annual Expenses (AUD)
1	Living Expenses per LIN 19/198	$21,041
2	Tuition Fees – 12 months	$7,000
3	Return Airfare	$2,000
4	Total	$30,041

1. The delegate in the Decision Record made a finding the applicant failed to provide adequate evidence of GAF. This finding was based on the applicant not providing financial documents in support of the application for the student visa.

2. The applicant seeks review of this decision before the Tribunal – it is not an appeal of the decision or the reasons given. The applicant claimed he had not provided GAF previously notwithstanding he had available documents showing financial capacity, due to the agent not providing the documents due to a miscommunication with the applicant.

3. The review application before the Tribunal requires a time of decision finding. This means at the time of decision the applicant must satisfy LIN 19/198. This means at the time of decision the Tribunal must be satisfied the applicant satisfies cl 500.214 of Schedule 2 to the Regulations. An applicant is required to provide current information to the Tribunal to satisfy GAF as set out in cl 500.214.

4. The applicant is required to provide proof of access to funds. In this case the Tribunal considers that the applicant is required to provide evidence of GAF amounting to $30,041 as set out above.

5. The applicant in evidence submitted updated documents from his parents’ term deposits and their supporting affidavits, confirming that he had GAF in the amount of $34,800.

6. The evidence submitted by the applicant as to access to funds in the amount of $34,800 satisfies the requirement of $30,041 required by LIN 19/198.

7. 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?

8. By reason of the matters set out above and the evidence given by the applicant and the documents submitted, the Tribunal accepts that there are sufficient funds available to meet costs and expenses while the applicant holds the visa.

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

   Will the applicant have genuine access to the funds?

10. 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.

11. By reason of the matters set out above and the evidence given by the applicant and the documents submitted, in particular the term deposits from the ICICI Bank and the updated affidavits from his parents, the Tribunal is satisfied the applicant will have genuine access to the funds, and the Tribunal is satisfied that cl 500.214(1) is met.

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

13. 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

14. 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.

    Michael Biviano
    Member

    
    

    Attachment – IMMI 18/015 – English language instrument (extract)

    6Primary Criteria

    (1)For the purpose of subclause 500.213(1) of Schedule 2 to the Regulations, the following requirements are specified:

    (a)the applicant must undertake one of the English language tests specified in Column 1 of Schedule 1;

    (b)the applicant must achieve the English language test score specified for that English language test in Column 3 of Schedule 1; and

    (c)the applicant must have completed the test within the following period:

    (i)if evidence of the test is provided at the time the applicant makes an application for a Subclass 500 (Student) visa - 2 years immediately before the date of the visa application; or

    (ii)if evidence of the test is not provided at the time the visa application is made - 2 years immediately before a decision to grant or refuse the visa application is made.

    (2)For the purpose of subclause 500.213(2) of Schedule 2 to the Regulations, subclause 500.213(1) of Schedule 2 to the Regulations does not apply to the following classes of applicants:

    (a)an applicant who is a citizen of, and who holds a valid passport issued by:

    (i)the United Kingdom;

    (ii)the United States of America;

    (iii)Canada;

    (iv)New Zealand; or

    (v)the Republic of Ireland; or

    (b)an applicant who is enrolled in a principal course of study that is:

    (i)registered to be delivered in a language other than English;

    (ii)a registered ELICOS course, as defined in regulation 1.03 of the Regulations;

    (iii)a registered school course; or

    (iv)a registered post-graduate research course; or

    (c)an applicant who is a:

    (i)Foreign Affairs student;

    (ii)Defence Student; or

    (iii)Secondary exchange student; or

    (d)an applicant, who, in the 2 years before applying for a Subclass 500 (Student) visa, has successfully completed:

    (i)the requirements for a Senior Secondary Certificate of Education, in a course that was conducted in Australia and in English; or

    (ii)a substantial component of a course leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher that was conducted in Australia and in English, while the applicant was holding a student visa; or

    (e)an applicant who has successfully completed a minimum of 5 years of study in English undertaken in one or more of the following countries;

    (i)Australia;

    (ii)Canada;

    (iii)New Zealand;

    (iv)South Africa;

    (v)the Republic of Ireland;

    (vi)the United Kingdom;

    (vii)the United States of America.

    …

    Schedule 1 — English language tests and minimum test scores

English language tests
Item	Column 1: Test name	Column 2: Acronym/ also known as	Column 3: Minimum test score
1	International English Language Testing system	IELTS Test	(a)    Overall band score 5.5; or (b)    Overall band score 5 if packaged with at least 10 weeks’ ELICOS; or (c)     Overall band score of 4.5 if packaged with at least 20 weeks’ ELICOS.
2	Test of English as a Foreign Language internet-based test	TOEFL iBT	(a)    46; or (b)    35, if packaged with at least 10 weeks’ ELICOS ; or (c)     32, if packaged with at least 20 weeks’ ELICOS.
3	Cambridge English: Advanced (CAE) test	Certificate in Advanced English	(a)    162; or (b)    154, if packaged with at least 10 weeks’ ELICOS; or (c)     147, if packaged with at least 20 weeks’ ELICOS.
4	Pearson Test of English Academic	PTE	(a)    42; or (b)    36, if packaged with at least 10 weeks’ ELICOS; or (c)     30, if packaged with at least 20 weeks’ ELICOS.
5	Occupational English Test	OET	a score of at least B for each test component of the OET.

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.

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.