Ekeocha (Migration)

[2018] AATA 5563

Ekeocha (Migration) [2018] AATA 5563 (29 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ndidi Ekeocha

CASE NUMBER:  1708407

HOME AFFAIRS REFERENCE(S):           BCC2017/446512

MEMBER:Adrienne Millbank

DATE:29 November 2018

PLACE OF DECISION:  Brisbane

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 November 2018 at 3:15pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – evidence of funds – bank statements and statutory declaration from brother – genuine access – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 3 April 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 3 February 2017. 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 (the Regulations) regarding financial capacity. The Delegate calculated the total cost of the applicant’s expenses to be $48,235, comprising $1,000 for travel expenses; $19,830 for living expenses; and $27,405 for course fees. The Delegate was not satisfied that the applicant had provided sufficient evidence of access to $48,235.

4. The Delegate noted that the applicant provided a Notice of Assessment from the Australian Taxation Office for her brother, a general practitioner in Brisbane, but as personal annual income above $60,000 must be that of an applicant’s parents or spouse, this evidence did not meet the legislative instrument requirement.

5. The applicant was assisted in relation to the review by her registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 $48,695, to cover her expenses while studying in Australia. (The increased amount reflects an increase in the specified annual living cost since the Delegate’s decision.)

8. As noted, 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.

9. 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?

10. The requirements for evidence of financial capacity for cl.500.214(3) are set out in IMMI 18/010, which is attached to this decision.

11. The applicant’s brother provided statements from his bank showing that as at 31 October 2018 he and his wife had a balance of $51,159 in a mortgage offset account. In a statutory declaration signed 22 November 2018 he declared that this account is maintained through deposits from his business account and does not drop below a general balance of $50,000. Statements of transactions from 1 July 2018 were provided, showing a balance of $101,807 on 1 July 2018; $114,080 on 31 July 2018; and $65,800 on 31 August 2018.

12. On the basis of the above, the Tribunal is satisfied that the applicant has provided evidence of financial capacity of $48,695, and therefore meets cl.500.214(3) and cl.500.214(2).

    Will the applicant have genuine access to the funds?

13. 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.

14. On 23 November 2018 the Tribunal received a statutory declaration from the applicant’s brother, signed on 22 November 2018, in which he declared the following:

    I confirm I am the biological brother of (the applicant).

    I have been providing support for my sister in Australia since she first applied for a student visa in 2015. I provide my sister financial assistance for her course fees and living expenses, as well as assistance with her accommodation.

    I confirm that I have funds within my mortgage offset account, statements for which I have previously provided.

    I confirm my sister (the applicant) has full access to this account for the expenses associated with her studies in Australia.

15. On the basis of this evidence, the Tribunal is satisfied the applicant will have genuine access to the funds. Therefore, cl.500.214(1) is met.

16. Accordingly, the Tribunal is satisfied that the applicant meets cl.500.214.

17. 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

18. 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.

    Adrienne Millbank
    Member

    
    

    Attachment – IMMI 18/010 – Financial capacity instrument (extract)

    6Subclass 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 subsection (2), (3), (4), (5) or (6).

    Note: For primary applicant, see section 4 of Part 1 of 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 – AUD20,290 (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 commencing:

    (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,

    and ending on the final day of the applicant’s final course of study.

    (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 - AUD7,100; and

    (B)for a dependent child - AUD3,040; 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 - AUD8000 (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 of 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 AUD60,000; or

    (ii)if there is a secondary applicant  – at least AUD70,000.

    (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.

    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.