Dawa (Migration)
[2024] AATA 1652
•3 June 2024
Dawa (Migration) [2024] AATA 1652 (3 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Namgyel Dawa
Mrs Nim DemREPRESENTATIVE: Mr Gurpreet Singh (MARN: 0853129)
CASE NUMBER: 2320401
HOME AFFAIRS REFERENCE(S): BCC2023/5160410
MEMBER:Gabrielle Cullen
DATE:3 June 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction 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 03 June 2024 at 1:41pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – provided evidence of Genuine Access to Funds – decision under review remittedLEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.214STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 December 2023 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 7 September 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 delegate in this case 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 he had not provided sufficient evidence of financial capacity. The delegate indicated he was required to show funds of $65,456 but had only provided evidence of funds in the sum of $47,676.45.
The applicant applied for review on 13 December 2023 and attached the decision of the Department.
He has since provided the following evidence to satisfy this criterion.
·Confirmation of Enrolment to study a Master of Project Management from 20 February 2023 to 31 December 2024 at a cost of $73,553. The PRISMS record confirms enrolment in this course. Academic record dated 19 December 2023 indicate he has completed 6 units towards this course and a letter from the education provider confirms enrolment in this course.
·Evidence the applicants hold $50,022.66 in their CBA account as at 20 May 2024 as well as a transaction history from 7 December 2023 to 22 May 2024.
·Evidence he paid $16,320 towards the current course in Semester one 2023, $16,320 in Semester two, 2023 and $16,830 in Semester one 2024.
The applicants’ representative also made a written submission and provided education certificate as well as evidence of health insurance.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 case is whether the applicant has genuine access to funds and satisfies cl 500.214 of Schedule 2 to the Regulations.
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.
To meet subcls.500.214(1) and (2), the Tribunal must be satisfied that the applicant will have genuine access to sufficient funds available to meet costs and expenses while the applicant holds the visa.
Has the applicant provided evidence of financial capacity in accordance with the instrument?
The requirements for evidence of financial capacity for cl 500.214(3) are set out in Migration (LIN 19/198: Evidence of financial capacity – Subclass 500 Visa and Subclass 590 Visa) Instrument 2019 (the Instrument), which is attached to this decision.
The applicant has provided evidence of a money deposit held in the applicants’ names in the sum of $50,022.66 with CBA. CBA is a commercial bank and therefore he has shown evidence of a money deposit held with a financial institution that satisfies the requirement of cl 10 of the Instrument.
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?
The Instrument specifies that the applicant must demonstrate sufficient funds to meet the identified costs and expenses for himself, and if necessary, each member of his family unit, as follows:
i.Living costs; and
ii.Course fees; and
iii.Travel expenses.
Living Costs
The CoE submitted by the applicant indicates that he intends to study for a period of less than 12 months to 31 December 2024. As the applicant applied for the visa on 7 September 2023, the relevant instrument is LIN19/198. He is not subject to the recent amendment to that instrument, LIN23/170, as this only applies to applications made on or after 1 October 2023 or any amendments after that date. The living costs therefore as set out in the Instrument are $21,041 for the applicant and $7,362 for the second named applicant for a 12-month period and . From the date of this decision to 31 December 2023, his living costs are $12,163.42 and the second named applicants are $4,255.84. Total living costs are therefore $16,419.26.
Course Fees
According to the Instrument, course fees are calculated by reference to the length of the applicant’s period of study in Australia, minus any amount already paid. If the duration, or remainder, of the applicant’s period of study is less than 12 months, the course fees are for the course of study or the remaining components of the course of study. If the duration, or remainder, of study is more than 12 months, the course fees are for the first 12 months of the period of study in Australia. Where the course fees are wholly or partly prepaid, the relevant course fee would be the balance.
The ‘period of study’ is defined in the notes section to s 6(2)(b)(iii) of the current instrument (LIN 19/198). As the applicant began studying the first course before the day of application the period of study begins at the date of the application being 7 September 2023 and ends 12 months after the start of that course being 7 September 2024. The evidence indicates he is enrolled in a Maser of Project Management with course fees in the sum of $73,553 for a period from 20 February 2023 to 31 December 2024 at a cost of $73,553. The evidence indicates he has paid $49,470 towards this course. Course fees as at 7 September 2024 would be $61,113.
Course fees therefore amount to $11,643.
Travel expenses
This item is for the cost of the applicants travelling to return to their home country, Bhutan from Australia at the conclusion of their visas. It is noted that the travel costs for a one-way ticket to Bhutan can vary but the reasonable cost is estimated by the Tribunal to be in the sum of $1000. Travel costs therefore amount to $2,000 for both applicants.
Total expenses
In accordance with LIN 19/198, the Tribunal finds that the applicant’s total course fees, living costs and travel expenses for his remaining period of his course of primary study are:
Living costs $16,419.26
Course fees $11,643
Travel expenses $2,000
Total $30,062.26
The applicant is therefore required to give evidence of sufficient funds to meet expenses totalling $30,062.26.
The bank statement submitted by the applicant sets out that as at 20 May 2024 the applicants hold $50,022.66 in their CBA account which is more than the required evidence of funds of $30,062.26. The Tribunal is therefore satisfied that the applicant has sufficient funds.
For these reasons, the applicant meets cl 500.214(2) of Schedule 2 to the Regulations.
Will the applicant have genuine access to the funds?
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.
The applicant has provided evidence of funds held with the second named applicant in the sum of $50,022.66. The Tribunal is satisfied that he will have genuine access to these funds as they are held in his name together with the second named applicant.
Accordingly, the Tribunal is satisfied that 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 remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.214 of Schedule 2 to the Regulations.
Gabrielle Cullen
MemberAttachment – 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.
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Remedies
-
Jurisdiction
0
0
0