GC (Migration)

[2024] AATA 718

GC (Migration) [2024] AATA 718 (21 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dilip Kumar GC

REPRESENTATIVE:  Mr Mohammad Ahasan Ali (MARN: 0851085)

CASE NUMBER:  2309559

HOME AFFAIRS REFERENCE(S):          BCC2023/806886

MEMBER:Penelope Hunter

DATE:21 February 2024

PLACE OF DECISION:  Sydney

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 21 February 2024 at 11:44am

CATCHWORDS  
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant’s father has guaranteed financial support to the applicant – applicant was meeting current expenses from his income – applicant has provided evidence that he has met the costs of his course fees – 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 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 28 June 2023 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 12 May 2023. 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 (Cth) (the Regulations) because the applicant had not provided evidence to satisfy the delegate that he had access to sufficient funds to meet his costs and expenses during the period of his extended stay in Australia.

4. The applicant appeared before the Tribunal on 16 February 2024 to give evidence and present arguments. The applicant was assisted in relation to the review, who also participated in the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

8. In the present case, with the online submission of his visa application, the Department’s online Document Checklist Tool, which is part of the visa application process indicates that evidence of financial capacity is required. The Department relies upon this as triggering the requirement for the applicant to give evidence of financial capacity in accordance with cl 500.214(3) of Schedule 2. In the visa application the applicant stated that he would have sufficient funds, however no evidence of this financial support was submitted.

9. In response to a request from the Tribunal for evidence of financial capacity in accordance with cl 500.214(3) of Schedule 2, the applicant submitted the following material:

   i.Tax receipts for the payment of fees in the Diploma of Leadership and Management, dated 7 September 2022, 9 November 2022, 15 March 2023, 15 May 2023, 19 July 2023, 30 September 2023 and 28 December 2023.

   ii.Confirmation of Enrolment (CoE) for the applicant in a Diploma of Leadership and Management with course dates from 9 May 2022 to 5 May 2024, total tuition fee $11,000.00.

   iii.Bank Balance Certificate dated 18 October 2023, issued by the Citizens Bank for account of Krishne Lohar, closing balance 4,001,839.90 NPR which was equivalent to $47,353.45 AUD.

   iv.Student Visa Financial Support Statement of Krishne Lohar.

   v.Passport of Krishne Lohar, the applicant’s father.

   vi.Birth Registration Certificate of the applicant

   vii.Student visa financial guarantee of Krishne Lohar

   viii.Citizens Bank International Limited Balance Certificate for Krishne Lohar, NPR 4,011,201.85 as of 17 January 2024

   ix.Citizens Bank, Statement of account 1 August 2023 to 18 January 2024

   x.Letter from Choice Academic College confirming the enrolment of the applicant.

   xi.Tax clearance certificate for the applicant’s father and uncle dated 26 January 2024.

   xii.Payslip for the applicant.

   xiii.Screenshot of an email to the applicant regarding college summer break.

   xiv.Choice Academic 2024 Timetable.

   xv.Artisans Multipurpose Co-operative Loan application dated 26 October 2023.

   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 LIN 19/198, which is attached to this decision.

11. The applicant has provided evidence of funds that his father holds with the Citizens Bank. A money deposit with a financial institution is a satisfactory form of evidence of financial capacity in accordance with s10 of the Instrument.

12. 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?

13. The Instrument specifies that the applicant must demonstrate sufficient funds to meet the identified costs and expenses for himself, and if necessary, any member of his family unit, as follows:

    ·Living costs; and

    ·Course fees; and

    ·Travel expenses.

    Living Costs

14. The living costs as set out in the Instrument at the time of the visa application were $21,041 for a period of 12 months or more. The applicant is single and has included no other members of his family unit in his visa application, therefore he is only required to demonstrate costs for himself.

15. According to the most recent enrolments submitted the applicant is currently undertaking study in a Diploma of Leadership and Management with course dates from 9 May 2022 to 5 May 2024. He has no further enrolments. As the applicant does not intend to stay for a period of 12 months of more from the date of this decision, the applicant only needs to show the pro rata equivalent of the annual living costs. According to s 11 of the Act this is calculated by dividing the annual living costs by 365 and multiplying the resulting number by the number of days that the applicant is intending to stay in Australia.

16. It remains that there are 74 days between the date of this decision and the conclusion of the applicant’s course. At the rate of $57.65 per day, it follows that the applicant is required to show living costs in the sum of $4,266.10.

    Course Fees

17. According to the Instrument, if the duration, or the remainder of the applicant’s period of study in Australia is more than 12 months, the applicant is required to demonstrate funds for the course fees for the first 12 months of the period of study. Furthermore, according to the note at item (2)(iii) of the Instrument, 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 course of study:

    a)If the applicant’s first course of study commenced after the date of application – on the first date of the first course of study.

    b)If the applicant’s first course of study commenced before the date of application – on the date of application.

18. The applicant applied for the visa on 12 May 2023, at that time according to his CoE his course had already commenced on 9 May 2022, and has a duration of approximately two years,[1] until 5 May 2024, and the fees as details in the CoE submitted are $11,000. The recorded payments on the applicant’s CoE  and receipts provided by the applicant from his education provider demonstrate that in the relevant period according to the Instrument, the applicant has already paid $9,625.00. His remaining course fees in the relevant 12 month period are assessed as $1,375.00.

    Travel Costs

    [1] 731 days

19. This item is for the cost of the applicant travelling to return to their home country from Australia at the conclusion of his visa. It is noted that the travel costs for a one way tickets to Nepal can vary but the reasonable cost are estimated by the Tribunal in the sum of $1,000.00.

    Total expenses

20. In accordance with LIN 19/198, the Tribunal finds that costs and expenses that the applicant is required to demonstrate are;

    Living costs                $4,266.10

    Course fees               $1,375.00

    Travel expenses        $1,000.00

    Total   $6,641.10

21. The evidence is that the applicant’s father holds the equivalent of equivalent to $47,353.45 AUD in his account with the Citizen’s Bank, which have been advanced pursuant to a mortgage from the Artisans Multipurpose Co-Operative Ltd. This is in excess of the sum  of $6,641.10 that the applicant is required to demonstrate.

22. For these reasons, the Tribunal is satisfied that the applicant meets cl 500.214(2).

    Will the applicant have genuine access to the funds?

23. 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.

24. The Tribunal has considered the statements of support provided by the applicant’s father whereby he has guaranteed financial support to the applicant and that he will have full access to the funds as required. The Tribunal is also satisfied from the loan documents as to the source of the funds. The applicant told the Tribunal at hearing that the funds can be transferred to him on request, but in the meantime he was meeting current expenses from his income. The applicant has provided evidence of his employment with Costi Martins Seafood Pty Ltd. The applicant has provided evidence that he has met the costs of his course fees to date and the Tribunal is satisfied from the totality of the evidence before it that the applicant will if required have genuine access to the funds he maintains are available for his support.

25. As the Tribunal is satisfied the applicant will have genuine access to the funds, cl 500.214(1) is met.

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

27. 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

28. 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.

    Penelope Hunter
    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.