Budchewakasem (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa. The applicant sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which had affirmed the refusal of their visa application. The core of the dispute revolved around whether the applicant had provided sufficient evidence of financial capacity as required by clause 500.214(3) of Schedule 2 to the Migration Regulations 1994, read in conjunction with the legislative instrument LIN 19/198.

The legal issues before the court were whether the Tribunal had erred in its assessment of the applicant's financial capacity, specifically whether the applicant had provided evidence that satisfied the requirements of clause 500.214(3) and LIN 19/198 at the time of the Tribunal's decision. The Tribunal was required to make a finding based on current information at the time of its decision, and the applicant had been invited to provide documents to establish they met the visa criteria, including evidence of financial capacity.

The Tribunal found that the applicant had provided sufficient evidence to satisfy clause 500.214. This conclusion was reached after the applicant complied with a request from the Tribunal to provide supporting documentation, including evidence of current enrolment, past studies, and genuine access to sufficient funds to cover course fees, living costs, and travel expenses for the intended stay in Australia, or alternatively, evidence of the annual income of their parents or spouse/de facto partner. The Tribunal considered the documentation provided by the applicant in response to its request and was satisfied that the financial capacity requirements were met.

Accordingly, the Tribunal remitted the applications for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant and second named applicant met the criteria for a Subclass 500 (Student) visa, specifically clause 500.214 of Schedule 2 to the Regulations.