Boahen (Migration)

[2024] AATA 1080

Boahen (Migration) [2024] AATA 1080 (29 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Boaz Boahen

CASE NUMBER:  2320405

HOME AFFAIRS REFERENCE(S):          BCC2023/5220276

MEMBER:David Thompson

DATE:29 April 2024

PLACE OF DECISION:  Perth

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 29 April 2024 at 5:56pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – genuine access to funds – access to available funds in accounts of family members – employment income – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 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 Home Affairs on 29 November 2023 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 11 September 2023. 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 that the applicant met the financial requirements for the grant of a student visa.

4. The applicant appeared before the Tribunal on 28 March 2024 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 meets the requirements of 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).

   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 (the Instrument) as it stood prior to 1 October 2023, which is attached to this decision.

10. The only provision of the Instrument applicable in this case on the evidence before me is s 6. In order to determine whether the applicant meets the requirements of that provision, I must first calculate a figure representing the level of financial capacity to which the applicant must demonstrate he has access, in the manner set out in s 6(2). I must then determine whether, on the evidence before me, the applicant has demonstrated that he has access to that level of funding. That evidence must meet the requirements of s 6(2)(a), (3), (4), (5), or (6) of the Instrument. On the facts of this case, only s 6(2)(a) or (3) could possibly be applicable. There is no evidence before me that could qualify for consideration under s 6(3).

11. In order to calculate the financial capacity figure under s 6(2), I must determine amounts for the applicant’s living costs and expenses, his travel expenses, and his course fees.

12. The applicant is currently studying for a Bachelor of Science (Paramedical Science). Those studies will occupy him until 31 December 2025, when his course finishes. It follows that, as of the date of this decision, he intends to remain in Australia for a period greater than 12 months. Under s 6(2)(b)(ii)(A), I must apply the amount of $21,041 for living costs and expenses.

13. I allow $1,000 for the applicant’s travel expenses, being his expenses of his journey to his home country once he has finished his studies in Australia.

14. As to course fees, I find that the applicant’s period of study for the purposes of the Instrument started on 11 September 2023 (the date of the applicant’s visa application, by which he was already studying) and will end on 31 December 2025, the last day of his course. As that period is longer than 12 months, I must determine the amount of course fees payable within the first 12 months of that period, that is, 11 September 2023 to 11 September 2024. That figure, less any amount already paid, is the figure I must use for course fees.

15. The 12-month period in question takes in, either in part or in whole, the second semester of 2023 and both the first and second semesters of 2024. The applicant has provided evidence of his course structure, in the form of a document entitled ‘Course Planner.’ He has also provided evidence, in the form of receipts from his course provider, which satisfy me that he has paid all fees payable for the second semester of 2023 and the first semester of 2024. These receipts also satisfy me that he has paid the fees for one of the two subjects he will study in the second semester of 2024 (which is in fact a full year course). He will need to pay for the remaining unit he will study in semester 2 of 2024. On the basis of the receipts the applicant has provided, he will be charged $4,610 for that course, and will be required to pay before 11 September 2024. I therefore find that the amount in respect of course fees I must include in the calculation of financial capacity for the purpose of cl 500.214(3) is $4,610.

16. On the basis of the matters discussed and findings made in paragraphs 12 to 15 above, I find that the level of financial capacity that the applicant must demonstrate for the purposes of cl 500.214(3) is $26,651.

17. The applicant has provided the following documents as evidence of his financial capacity:

    a.an Agricultural Development Bank plc account statement for an account held by Gbangu Enterprise, showing an account balance at 2 April 2024 of GHS152,398.32 (which on current exchange rates is the equivalent of AUD17,109.79); and

    b.an Agricultural Development Bank plc account statement for a second account held by Gbangu Enterprise, showing an account balance at 2 April 2024 of GHS1,127,153.12 (which on current exchange rates is the equivalent of AUD126,545.75).

18. I find that these documents constitute evidence falling within the scope of s 10 of the Instrument, and as such may be considered for the purposes of cl 500.214(3). The applicant also provided his payslips for the period 3 March 2024 to 31 March 2024. These do not fall within the scope of s 10. They are, however, relevant to the requirement of cl 500.214(2) and will be considered in that connection below.

19. The applicant has provided a statutory declaration made by his father, Mr James Tawiah, whose name appears frequently in the account statements mentioned above. To that declaration are annexed a certificate of incorporation and certificates of business name registration. The applicant has also provided an explanatory letter from the Agricultural Development Bank plc. On the basis of that declaration and those documents, I am satisfied that Gbangu Enterprise is a business owned and operated by the applicant’s father, and that its funds are available to the applicant for the purposes of his studies in Australia.

20. The total amount of funds held in the account of Gbangu Enterprises is equivalent to AUD143,655.54. That is well above the level of financial capacity I have calculated for the purposes of cl 500.214(3).

21. On the basis of the above, I am 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?

22. Clause 500.214(2) requires me to be satisfied that whilst the applicant holds the visa for which he has applied, sufficient funds will be available to meet his costs and expenses during his intended stay in Australia.

23. At hearing, I took evidence from the applicant regarding his actual living costs and expenses in Australia, as well as evidence regarding his own earnings (as to which, see the payslips mentioned in paragraph 18 above). I will not repeat that evidence here. It suffices to say that I found it reasonable and plausible. In the statutory declaration made by the applicant’s father mentioned above, the applicant’s father confirms his financial support for his son’s studies in Australia. In combination with the evidence I have discussed in relation to the requirements of cl 500.214(3), this additional evidence satisfies me that the applicant will have access to sufficient funds to meet his costs and expenses during his intended stay in Australia.

24. For these reasons, I am satisfied that the applicant meets cl 500.214(2).

    Will the applicant have genuine access to the funds?

25. 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.

26. To the extent that the applicant is relying on funds provided by his father, I am satisfied for the reasons given above that he has genuine access to those funds. The applicant also relies on his own earnings to some extent, and it is clear that he has genuine access to those funds.

27. As I am satisfied the applicant will have genuine access to the funds upon which he relies, cl 500.214(1) is met.

28. Accordingly, I am satisfied that the applicant meets cl 500.214.

29. 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

30. 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.

    David Thompson
    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.

    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.