Gurwinder Singh (Migration)

[2018] AATA 1380

Gurwinder Singh (Migration) [2018] AATA 1380 (9 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurwinder Singh

CASE NUMBER:  1718933

DIBP REFERENCE(S):  BCC2017/1830288

MEMBER:Michael Ison

DATE:9 April 2018

PLACE OF DECISION:  Melbourne

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 09 April 2018 at 5:46pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Financial capacity – Intended to remain in Australia for another 30 days – Genuine access to sufficient funds to meet living expenses – Father’s bank account statement

LEGISLATION
Migration Act 1958 s 65

Migration Regulations 1994 r 1.03 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 on 2 August 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 is Mr Gurwinder Singh, a 27 year old from India.

3. Mr Singh applied for the visa on 23 May 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). Mr Singh applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

4. The delegate in this case refused to grant the visa on the basis that Mr Singh did not satisfy the requirements of cl.500.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that Mr Singh would have genuine access to sufficient funds to meet his costs and expenses whilst in Australia.

5. On 21 February 2018 the Tribunal wrote to Mr Singh advising him the Tribunal could hear his application on 1 March 2018. The Tribunal asked Mr Singh to confirm in writing whether he agreed to a shortened period for notification from the Tribunal for him to attend a hearing.

6. On 21 February 2018 Mr Singh wrote to the Tribunal agreeing that the period for notifying him to attend a hearing at the Tribunal could be shortened.

7. The Tribunal wrote to Mr Singh on 23 February 2018 inviting Mr Singh to attend a hearing on 1 March 2018 and requesting Mr Singh provide the following information prior to the hearing of his application:

   ·Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument.

   OR

   ·Evidence of the annual income of your parents/spouse/de facto partner and that you have genuine access to those funds.

8. Mr Singh did not comply with the Tribunal’s request.

   The hearing

9. Mr Singh appeared before the Tribunal on Thursday 1 March 2018 to give evidence and present arguments.

10. Mr Singh was assisted in relation to the review by his registered migration agent, who participated in the hearing by telephone from Brisbane.

11. The Tribunal had a copy of the Department’s file and the Tribunal’s file for this application. The Department’s file included Mr Singh’s application for the student visa and all the documents submitted with that application.

12. Mr Singh provided a copy of the delegate of the Minister’s decision with his application for review to the Tribunal.

13. On the morning of the hearing, Mr Singh’s registered migration agent uploaded the following documents to the Tribunal:

    ·A bank account balance statement for an account in the name of Mr Jugraj Singh Mann, Mr Singh’s brother in law;

    ·Copies of identity papers for Mr Singh and members of his family;

    ·A bank statement for Mr Raghbir Singh, Mr Singh’s father;

    ·An affidavit of sponsorship for Mr Singh from his father;

    ·Bank account statements from bank accounts held by Mr Raghbir Singh;

    ·A statement from Mr Mann’s tax accountant confirming Mr Mann’s annual taxable income; and

    ·Mr Singh’s response to the hearing invitation form.

14. After the hearing Mr Singh’s registered migration agent provided the following documents to the Tribunal:

    ·A covering email dated 5 March 2018;

    ·Submissions by letter dated 5 March 2018;

    ·Receipts for course fees dated 15 April 2016 and 3 July 2017;

    ·Academic transcript for a Master of Professional Accounting and Master of Business Administration;

    ·Confirmations of enrolment for the above; and

    ·Another copy of the documents previously provided to the Tribunal on the day of the hearing.

15. The Tribunal informed Mr Singh of the following matters at the hearing:

    ·A summary of the findings of the Department from its decision dated 2 August 2017;

    ·A major issue on review was whether Mr Singh would have sufficient funds available to meet his costs and expenses during his intended stay in Australia, including having satisfactory evidence of being able to access such funds;

    ·There are two pathways to satisfy cl. 500.214 but the delegate of the Minister rejected Mr Singh’s application on the basis Mr Singh did not satisfy the delegate that Mr Singh’s parents had personal income equalling or exceeding the amount set out in a statutory instrument known as IMMI 2017/012 at the time of decision;

    ·The Tribunal has a copy of Mr Singh’s Provider Registration and International Student Management System (PRISMS) record and Mr Singh’s movement records. The Tribunal explained to Mr Singh what those records are, how they are compiled and what they show. The Tribunal also informed Mr Singh that the Tribunal did not consider the information in those records to be either adverse to Mr Singh or to be relevant to the issues before the Tribunal. Even though the Tribunal did not consider the information in those records to be adverse to Mr Singh, the Tribunal still invited Mr Singh to comment on the information. The applicant commented on the information in his PRISMS records but not on the information in his movement records.

16. Mr Singh provided information to the Tribunal or gave evidence during the hearing that:

    ·Mr Singh’s Student visa was granted offshore on 4 December 2014;

    ·Mr Singh arrived in Australia on 11 December 2014;

    ·Mr Singh applied for the Student visa that is the subject of this review on 23 May 2017;

    ·The delegate of the Minister refused Mr Singh’s application on 2 August 2017;

    ·There are no secondary applicants dependent on Mr Singh’s visa;

    ·Mr Singh did not apply for his student visa using an Acceptance Advice of Secondary Exchange Student form (AASES form);

    ·Mr Singh’s visa application was not sponsored by either the Department of Foreign Affairs and Trade or the Department of Defence; and

    ·Mr Singh believes his father has sufficient funds to support him or that he can rely on the support of his brother in law, Mr Mann, who is an Australian citizen and has a taxable income of AUD64,500.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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.

19. The issue in the present case is whether Mr Singh has genuine access to sufficient funds to meet the costs and expenses of Mr Singh’s intended stay in Australia.

20. Mr Singh confirmed during the hearing that no-one is dependent upon his Student visa. The Tribunal accepts Mr Singh’s evidence.

21. Mr Singh did not seek to establish, and did not provide any evidence to support, that the evidence of his financial capacity is a completed AASES form.

22. Mr Singh did not seek to establish, and did not provide any evidence to support, that the evidence of his financial capacity is a letter of support from the Department of Foreign Affairs and Trade.

23. Mr Singh did not seek to establish, and did not provide any evidence to support, that the evidence of his financial capacity is a letter of support from the Department of Defence.

24. Mr Singh gave evidence to the Tribunal that he does not have a spouse or de facto partner.

25. The relevant statutory instrument at the time of the delegate’s decision, IMMI 2017/012, was repealed by a new statutory instrument issued on 8 January 2018 known as IMMI 2018/010 (IMMI 18/010). IMMI 18/010 applies from 1 February 2018.

26. One way for Mr Singh to demonstrate that he has genuine access to sufficient funds to meet the costs and expenses of his intended stay in Australia is by providing evidence in an acceptable form that his parent had an annual personal income of at least AUD60,000 in the 12 months immediately before the applicant applied for his student visa.

27. The Tribunal notes that there is a small but potentially significant difference between the wording of IMMI 17/012 and IMMI 18/010.

28. In section 2(c) of IMMI 17/012 the instrument refers to the personal annual income of the applicant’s “… parents, spouse or de facto partner…”. By referring to parents in the plural, a broad reading of IMMI 17/012 is that it allows an applicant to rely on the combined income of both of the applicant’s parents to meet the requirements of IMMI 17/012.

29. However, in section 6(3)(b) of IMMI 18/010 the instrument refers to the personal annual income of the applicant’s “… parent, spouse or de facto partner…”. By referring to parent in the singular, IMMI 18/010 appears to require the applicant to choose the annual income of one of their parents to meet the requirements of the IMMI 18/010. If this is an error of drafting then it has been repeated throughout IMMI 18/010, as all three other references to parent in IMMI 18/010 are also to parent in the singular rather than plural.

30. In this case, Mr Singh is only seeking to rely on the personal annual income of his father or his brother in law, Mr Mann.

    Genuine access to funds (cl.500.214)

31. 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.

32. 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?

33. 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.

34. IMMI 18/010 at section 6(3) requires that an applicant seeking to satisfy the financial capacity primary criteria for a Subclass 500 (Student) visa can do so by demonstrating that the applicant’s parent had a personal annual income, in the 12 months immediately before the application is made, that is at least AUD60,000.

35. The form of evidence of financial capacity required is set out in section 6(3)(a) of IMMI 18/010 which mandates the evidence of financial capacity must be in the form of official Government documentation of personal income that has been issued in the 12 months immediately before the application for the visa was made.

36. The critical date for section 6(3)(a) of IMMI 18/010 then is not when the personal income is earned, but when the official Government documentation of that income is issued.

37. The critical requirement for section 6(3)(b) of IMMI 18/010 is that the official documentation must demonstrate that the personal annual income earned in the 12 months immediately before the application for a student visa is made was at least AUD60,000.

38. As Mr Singh applied for the relevant student visa on 23 May 2017, the official Government documentation had to be issued between 23 May 2016 and 22 May 2017 to satisfy the requirements of section 6(3)(a) of IMMI 2018/010.

39. Similarly, the official Government documentation had to demonstrate the personal income of Mr Singh’s parent, in this case his father, between 23 May 2016 and 22 May 2017 was at least AUD60,000 to satisfy the requirements of section 6(3)(b) of IMMI 18/010.

40. At the hearing Mr Singh sought to rely on the personal income of his brother in law, Mr Mann, whose tax accountant had submitted in an undated letter has an annual taxable income of “…$64500 approximately…”.[1]

    [1] Tribunal file, folio 73.

41. The Tribunal is satisfied that the personal income of Mr Singh’s brother in law is not relevant for the purposes of section 6(3)(b) of IMMI 18/010 as Mr Mann is not a “… parent, spouse or de facto partner…” of Mr Singh and therefore his personal annual income cannot be used to meet that requirement of IMMI 18/010.

42. In addition, the financial information in relation to Mr Mann was not provided in the form required by section 6(3)(a) of IMMI 18/010 as it was not in the form of official Government documentation of personal income that had been issued in the 12 months immediately before the application for the visa was made.

43. The Tribunal is also satisfied that the personal annual income of Mr Singh’s father does not meet the requirements of section 6(3)(b) of IMMI 18/010.

44. Mr Singh’s registered migration agent submitted, and provided bank statements to support, that Mr Singh’s father holds funds in India equivalent to AUD17,464. The Tribunal was not provided with any evidence on official Government documentation of the personal income of Mr Singh’s father during the relevant period.

45. The amount of funds currently held by Mr Singh’s father does not disclose his personal annual income for the relevant period and bank account statements are not official Government documentation for the purposes of section 6(3)(a) of IMMI 18/010.

46. For both of those reasons, the Tribunal is satisfied Mr Singh has not established that his father had a personal annual income, confirmed on official Government documentation, of AUD60,000 or more between 23 May 2016 and 22 May 2017.

47. In the alternative, Mr Singh sought to establish that he could meet the requirements of cl.500.214 by demonstrating he had access to sufficient funds to meet travel expenses, living costs and annual course fees.

48. In this regard, section 6(2)(b) of IMMI 18/010 requires that Mr Singh provide evidence of financial capacity that demonstrates he has sufficient funds available to meet his following costs and expenses:

    (i)Travel expenses;

    (ii)If intending to stay in Australia for less than 12 months the pro rata equivalent of the annual living costs which are specified at AUD20,290; and

    (iii)Course fees.

49. Section 10 of IMMI 18/010 requires that evidence of financial capacity be in the form of a money deposit with a financial institution or loan with a financial institution or government loan or scholarship or financial support.

50. Section 11 of IMMI 18/010 sets out how the pro rata calculation is to be applied.

51. At the time of hearing Mr Singh intended to remain in Australia for another 30 days and had a current enrolment for this period.

52. The relevant cost of living expense as stated above is AUD20,290. Divided by 365 the amount is AUD55.59. At the time of hearing Mr Singh intended to remain in Australia another 30 days so the relevant amount for Mr Singh’s annual living costs is 30 times AUD55.59 which equals AUD1,667.67.

53. Mr Singh’s registered migration agent submitted to the Tribunal that it would cost AUD2,000 for Mr Singh to return to India. Whilst this figure seems high to the Tribunal, the Tribunal accepts the figure for the purpose of this review.

54. Mr Singh provided written evidence to the satisfaction of the Tribunal that he has paid his course fees in full.

55. The Tribunal is therefore satisfied that to meet the cost of living requirements of section 6(2) of IMMI 18/010 Mr Singh has to show he has genuine access to AUD3,667.67 held in a form that complies with section 10 of IMMI 18/010.

56. Mr Singh has provided a bank account statement for an account held by his father with the State Bank of India showing a balance of 8,31,896 Indian rupees as at 26 February 2018.

57. Regulation 1.03 of the Regulations defines the term ‘financial institution’, which is used in section 10 of IMMI 18/010, as a body corporate that, as part of its normal activities, takes money on deposit and makes advances of money under a regulatory regime governed by the central bank (or its equivalent) of the country in which the body corporate operates and that the Minister is satisfied provides effective prudential assurance.

58. Effective prudential assurance is not legislatively defined for this purpose, but Departmental guidelines describe it as referring to the prudent management of capital and other assets of the bank to meet its financial obligations as and when they become due.

59. The Tribunal is satisfied that the State Bank of India is a financial institution for the purposes of section 10 of IMMI 18/010.

60. For these reasons the Tribunal is satisfied that Mr Singh has provided evidence of financial capacity in accordance with the requirements of IMMI 18/010.

    Are there sufficient funds available to meet costs and expenses while the applicant holds the visa?

61. The amount Mr Singh’s father holds on deposit with the State Bank of India is 8,31,896 Indian rupees.

62. As at 28 March 2018 the Reserve Bank of Australia published an exchange rate showing one Australian dollar as equal to 49.96 Indian rupees.

63. This means the deposit of Indian rupees by Mr Singh’s father with the State Bank of India is equivalent to AUD16,650.70.

64. As calculated in paragraphs 48 to 55 above, Mr Singh must demonstrate he has access to at least AUD3,667.67 for the remainder of his stay as a student in Australia.

65. On the basis of the above, the Tribunal is satisfied that Mr Singh has demonstrated evidence of financial capacity to meet his costs and expenses in Australia whilst he holds a Student visa.

66. For these reasons, the Tribunal is satisfied that Mr Singh meets cl.500.214(2) of the Regulations.

    Will the applicant have genuine access to the funds?

67. 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.

68. Mr Singh has provided an affidavit from his father dated 26 February 2018 confirming that his father will support him financially during Mr Singh’s time in Australia. The Tribunal accepts this.

69. The bank account statements provided to the Tribunal by Mr Singh show regular transfers of funds from Mr Singh’s father to Mr Singh.

70. The Tribunal notes that Mr Singh has been in Australia since 11 December 2014 and has relied upon his father’s financial support since this time.

71. In these circumstances the Tribunal is satisfied that Mr Singh will have genuine access to the funds such that cl.500.214(1) of the Regulations is met.

    Conclusion

72. Accordingly, the Tribunal is satisfied that Mr Singh meets cl.500.214 of the Regulations.

73. 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

1. 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.

   Michael Ison
   Senior Member

   
   

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

   Part 1- Preliminary

   1Name

   (1)This instrument is the Migration (IMMI 18/010: Evidence of financial capacity for Subclass 500 (Student) visas and Subclass 590 (Student Guardian) visas) Instrument 2018.

   (2)This instrument may be cited as IMMI 18/010.

   2Commencement

   (1)Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
1.  The whole of this instrument	1 February 2018	1 February 2018

Note:This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

(2)Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3Authority

This instrument is made under the following subclauses of Schedule 2 to the Regulations:

(a)500.214(4);

(b)500.313(4); and

(c)590.216(4).

4Definitions

Note:A number of expressions used in this instrument are defined in the Regulations, including the following:

AASES form

course of study

Defence student

dependent child

financial institution

Foreign Affairs student          

nominating student

school-age dependant

student visa

A number of expressions used in this instrument are defined in the Act, including the following:

de facto partner

member of the family unit

spouse      

In this instrument:

Act means the Migration Act 1958.

primary applicant means an applicant seeking to satisfy the primary criteria for a Subclass 500 (Student) visa.

primary Student Guardian applicant means an applicant seeking to satisfy the primary criteria for a Subclass 590 (Student Guardian) visa.

primary student visa holder means a person of whom the secondary applicant is a member of the family unit, and who holds a student visa on the basis of satisfying the primary criteria for that visa.

Regulations means the Migration Regulations 1994.

secondary applicant means an applicant seeking to satisfy the secondary criteria for a Subclass 500 (Student) visa.

secondary Student Guardian applicant means an applicant seeking to satisfy the secondary criteria for a Subclass 590 (Student Guardian)

secondary student visa holder means a person who holds a student visa on the basis of satisfying the secondary criteria for that visa because they are a member of the family unit of the Primary Student Visa Holder.

5  Schedules

Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Part 2 – Requirements for applicants

6  Subclass 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.

7  Subclass 500 (Student) visa – secondary applicants 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 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 AUD70,000.

(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.

8   Subclass 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 AUD70,000.

(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.

9  Subclass 590 (Student Guardian) visa – primary applicants

(1)For the purposes of subclause 590.216(3) of Schedule 2 to the Regulations, a primary Student Guardian applicant must give to the Minister evidence of financial capacity that satisfies the requirements of subsection (2) or (3).

Note: For primary Student Guardian 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 Student Guardian applicant has sufficient funds available to meet the following costs and expenses of the primary Student Guardian applicant:

(i)travel expenses; and

(ii)the following living costs and expenses:

(A)if the primary Student Guardian applicant intends to stay in Australia for a period of 12 months or more – AUD20,290 (annual living costs); and

(B)if the primary Student Guardian 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

(c)    demonstrates that the primary Student Guardian applicant has sufficient funds available to meet the following costs and expenses of the nominating student:

(i)travel expenses; and

(ii)the following living costs and expenses:

(A)if the primary Student Guardian applicant intends to stay in Australia for a period of 12 months or more – AUD20,290 (annual living costs); and

(B)if the primary Student Guardian 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)course fees for any component of the nominating student’s course of study which will be completed while the primary Student Guardian 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 the primary Student Guardian applicant has sufficient funds available to meet the following costs and expenses of each secondary Student Guardian 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 Student Guardian 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 Student Guardian applicant’s spouse or de facto partner has a personal annual income that is at least AUD70,000.

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.