CHAULAGAIN (MIGRATION) - [2024] ARTA 130

CHAULAGAIN (MIGRATION) [2024] ARTA 130 (12 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicants:Ms Saru Chaulagain
Mr Pratik Adhikari
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2317022

Tribunal:General Member L Mojsin
Place:Sydney
Date: 12 December 2024
Decision:The Tribunal sets aside the decisions under review and remits the applications for Student (Temporary) (Class TU) visas for reconsideration, in accordance with the order that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.214 of Schedule 2 to the Regulations.

Statement made on 12 December 2024 at 10:25am
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant has provided documents including tax returns for both applicants – adequate evidence of genuine access to funds provided – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.214
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 October 2023 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visa on 25 July 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 second applicant is her spouse.
The delegate refused to grant the visas 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 had not provided any information regarding genuine access to funds.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicants appeared before the Tribunal on 14 November 2024 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by Teams video, having regard to the nature of this matter and the individual circumstances of the applicant who had access to Teams video. 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 video.
The Tribunal is satisfied the applicants were given a fair opportunity to give evidence and present arguments. The first applicant [applicant] confirmed that she could hear and see and that she understood the interpreter. The Tribunal was able to interact with the applicant and interpreter. All parties were able to maintain appropriate communication throughout the proceedings. The applicant was also provided with an opportunity to provide further written submissions post-hearing. The Tribunal is satisfied that the hearing provided a real opportunity to be heard.
The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicants were assisted in relation to the review by their registered migration agent.
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 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 review is the applicant’s 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 review, the Minister has required the applicant to give evidence of financial capacity in accordance with cl 500.214(3).
The applicant applied for the visa on 12 April 2023. 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.
As an alternative to providing evidence of sufficient funds to meet the applicable costs and expenses of the applicant (and each member of the family unit where there is a combined application), an applicant can provide evidence that their parents or spouse have personal annual income that is above an amount specified in s 6(3) of LIN 19/198. Section 6(3)(b) specifies the following annual income amounts: AUD $62,222 where there is no secondary applicant, or AUD $72,592 if one or more of the members of the applicant’s family are seeking to satisfy the secondary criteria for a Subclass 500 visa (or for Subclass 590 applicants). In addition, s 6(3)(a) provides that the only acceptable evidence of this annual income amount is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made, such as a tax assessment or country equivalent. No evidence has been provided to Department or the Tribunal that the applicants’ parents or spouse have an annual income of AUD $72,592.
The applicant may establish that she could meet the requirements of cl.500.214 by demonstrating she had access to sufficient funds to meet travel expenses, living costs and annual course fees as detailed in LIN 19/198.
A Confirmation of Enrolment [CoE] submitted to the Tribunal at that time has expired and the applicant has now provided CoE from Pacific College Pty Ltd to study a Diploma of Leadership and Management commencing on 12 August 2024 and ending on 10 August 2025 with a Tuition Fee of $6 000 and an Advanced Diploma of Leadership and Management commencing on 12 August 2026 and ending on 10 August 2027 with a Tuition Fee of $6 000.
The period of study has commenced after the date of application. Therefore as the duration, or the remainder, of the applicant’s period of study in Australia is more than 12 months, course fees are assessed for 12 months.
The total tuition fee was $ 6000 for 12 months. The applicant advised the Tribunal that she has paid $3400 of those fees. The applicant provided receipts.
Therefore the relevant costs are:

Course fees

$ 2600

Living Expenses applicant

$21041

Spouse

$ 7362

Travel

$ 2000

TOTAL

$33003

All of the funds required by an applicant to meet their relevant costs and expenses must also satisfy the requirements of s 10 of the current instrument. This specifies a limited range of evidence of financial capacity which is required, namely: a money deposit with a financial institution, a loan with a financial institution, government loans and scholarship or financial support.
The applicant submitted the following documents to the Tribunal to support the application:
- Certificate from Nabil Bank dated 18 October 2023 in the name of applicant ‘s father Bhim Prasad Adhikari showing a closing balance of NNPR 5,200,000 being equivalent US$38 965.90 [AUD $58,947.84]
- Certificate from Nabil Bank dated 15.11.2024 in name of applicant’s mother Rama Kumari Dangal NPR 279204 [$AUS 3224.79]
- Letter of Sponsorship from applicant’s father-in-law attesting to having sufficient funds in a bank account and regular income to support the applicant and her spouse
- Rental Income Tax Clearance of mother-in-law
- Bank Rental Statement of mother-in-law from 28 June 2023 to 28 October 2023
- Verification of Annual Income Source of second applicant’s parents of NPR 1,100,327 being $A13026.25
- Account Statement Nepal Bank from 15 May 2023 to 26 October 2023
- Compulsory Retirement Letter Father-in-law
- Tax Returns of Applicants
- Commonwealth Bank Statements
- Receipts for payment of fees
As the applicant has more than the required $33003 the applicant has sufficient funds available to meet costs and expenses while the applicant holds the visa, the Tribunal is satisfied that the applicant meets cl.500.214(3).
To meet cl.500.214(1), the Tribunal must also be satisfied that the applicant will have genuine access to funds referred to in subcl (3) and subcl(2) being sufficient funds will be available to meet:
(a) the costs and expenses of the applicant during the applicant's intended stay in Australia; and
(b) the costs and expenses of each member of the applicant's family unit (if any) who will be in Australia.
The applicant has provided documents including tax returns for both applicants for 2022, 2023, and 2024, income statements for the applicants, bank balance certificates, tuition fee receipts and evidence of payments from Nepal.
The Tribunal is satisfied the applicant has genuine access those finds, therefore cl 500.214(1) is met.
Accordingly, the Tribunal is satisfied 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 sets aside the decisions under review and remits the applications for Student (Temporary) (Class TU) visas for reconsideration, in accordance with the order that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.214 of Schedule 2 to the Regulations.
Date(s) of hearing: 14 November 2024
Representative for the Applicant: Mr Jaya Prakash Oli (MARN: 1570827)
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.

Course fees	$ 2600
Living Expenses applicant	$21041
Spouse	$ 7362
Travel	$ 2000
TOTAL	$33003