Chhantyal (Migration)

[2022] AATA 1851

Chhantyal (Migration) [2022] AATA 1851 (20 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Jenisha Chhantyal

REPRESENTATIVE:  Mr Chee Kang Tan (MARN: 0959691)

CASE NUMBER:  2201067

HOME AFFAIRS REFERENCE(S):          BCC2021/1552815

MEMBER:Mark Bishop

DATE:20 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

• cl 500.214 of Schedule 2 to the Regulations.

Statement made on 20 April 2022 at 11:57am
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– adequate evidence of genuine access to funds provided–  current proof of enrolment provided – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360

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 11 January 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 made the decision on the basis that evidence of Genuine Access to Finance was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

4. On 12 and 19 April 2022 the Tribunal received a written submission plus supporting documents from the applicant. These documents were in response to two separate requests from the Tribunal requesting further particulars as to statements of support from sponsors (in this case the father of the applicant) and genuine access to funds. These documents included current statements of support from the principal sponsor, evidence of deposits and transaction records held in the name of the sponsor in a bank in Nepal to the amount of AUD$30,727.46  and current proof of enrolment on education provider letterhead showing enrolment in a vocational level course in English until 12 August 2022 and COE’s showing enrolment in subsequent Diploma level courses in Business until 22 September 2024.

5. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   DECISION

7. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

   •          cl 500.214 of Schedule 2 to the Regulations

   Mark Bishop

   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.