Hundal (Migration)

Hundal (Migration) [2019] AATA 2283 (7 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Manpreet Kaur Hundal
Mr Hardeep Singh
Master Gurnoor Singh
CASE NUMBER:  1703310
HOME AFFAIRS REFERENCE(S):           BCC2016/2825423
MEMBER:Meredith Jackson
DATE:7 March 2019
PLACE OF DECISION:  Brisbane
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.

The second and third named applicants to be reconsidered on the basis of the remit of the primary applicant.

Statement made on 07 March 2019 at 2:07pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – evidence of financial capacity – sufficient funds to meet costs and expenses – genuine access to funds – member of the family unit – decision under review remitted for reconsideration
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.214
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 February 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 25 August 2016. 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 (the Regulations) because the applicant had not provided sufficient evidence of financial capacity.
The applicants appeared before the Tribunal on 27 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
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 will have genuine access to funds of the specified kind.
Genuine access to funds (cl.500.214)
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.
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?
The requirements for evidence of financial capacity for cl.500.214(3) are set out in IMMI 18/010 Evidence of Financial Capacity for Subclass 500 (Student) visas and Subclass 590 (Student Guardian) visas) Instrument 2018, which is attached to this decision.
Prior to the February 2017 decision, the delegate required the primary applicant (the applicant) to demonstrate access to AUD42,000 to cover total course fees, living costs and travel costs for herself and the secondary applicants for the first 12 months of her period of intended stay in Australia.
At the time of this decision, the Tribunal has calculated the amount required to meet the specified requirements is now AUD15,255. This is based on an intended stay of 147 days to 31 July 2019, which is the remaining period of the applicant’s current course. The amount comprises AUD8,172 in living costs for the applicant, AUD2,859 in living costs for the applicant’s dependant partner, AUD1,224 in living costs for the applicant’s three year-old dependant child and AUD3,000 in travel expenses.
Prior to the hearing, the applicant provided a Commonwealth Bank record of a joint account held by the applicant and her spouse Mr Hardeep Singh, showing a closing balance at 7 November 2018 of AUD14,504.29.
The applicant also submitted evidence of a bank account held by her father-in-law at Axis Bank in Amritsar, India, with a balance of INR861,966. The Tribunal has calculated this is an amount equivalent to approximately AUD17,453.16 at an exchange rate of AUD1.00 to INR49.3874.
The applicant also submitted evidence to the Tribunal of deposits from the bank account of her father-in-law to the joint account referred to earlier in these reasons. The deposits were made on two separate occasions in 2018 and were for amounts of AUD2,846 and AUD1,975 respectively.
The Tribunal has established from the applicant’s record in the Provider Registration and International Student Management System (PRISMS) that there are no outstanding course fees for the applicant’s specified period of study, which extends from the first day of the first course after the visa application date and ends on the last day of the applicant’s final course of study within a 12 month period.
The Tribunal notes the applicant has also provided tuition payment receipts for course fees for her current enrolment in a Master of Professional Accounting, however the Tribunal notes these fee amounts were not payable within the specified period of study, and therefore these payment receipts have not been taken into account in calculating expenses. However the Tribunal accepts that the payments demonstrate the applicant has had access to sufficient funds to have paid a total of AUD22,250 in course fees throughout 2018.
After careful consideration and in summary, the applicant has provided evidence of having funds in an Australian bank account of AUD14,504.29; has reasonably demonstrated that her father-in-law is supporting her studies financially; and that the amount not covered by the parties’ current Australian–based resources amounts to AUD751. The Tribunal accepts that the applicant has demonstrated she will have genuine access to at least that amount from the funds held by her father-in-law, as is indicated by the evidence of two deposits from him totalling AUD4,821 in 2018. The Tribunal also takes into account that the applicant made AUD22,250 in tuition payments to her education provider in 2018 for her Masters of Professional Accounting course.
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?
As the applicants have AUD14,504.29 in a joint Australian bank account, and have access to funds from the applicant’s father-in-law for at least the required remaining amount of AUD751, as evidenced by the applicant’s father-in-law having deposited AUD4,821 to the parties’ Australian bank account in 2018 and tuition payments having been made totalling AUD22,250 in 2018, the Tribunal is satisfied sufficient funds are available to meet costs and expenses while the applicant holds the visa.
For these reasons, the Tribunal is satisfied that the applicant meets cl.500.214(2).
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 demonstrated genuine access to the funds referred to above through a combination of the applicants’ joint bank account balance of AUD14,504.29 and access to at least the remaining AUD751 from the applicant’s father-in-law. The Tribunal accepts the latter is demonstrated by the applicant’s father-in-law having deposited AUD4,821 to the parties’ Australian bank account in 2018 and tuition payments having been made by the applicant to a total of AUD22,250 in 2018.
As the Tribunal is satisfied the applicant will have genuine access to the funds, cl.500.214(1) is met.
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.
Secondary applicants
The second and third named applicants’ entitlement to a visa is initially dependent on whether the primary applicant is successful in obtaining the visa, and then on whether they meet any additional visa criteria applicable. Given that the application is being remitted to the Department to consider the remaining criteria for a Subclass 500 visa in respect of the primary applicant, it follows that the Department must also consider the remaining criteria in respect of the secondary applicants.
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.
The second and third named applicants to be reconsidered on the basis of the remit of the primary applicant.
Meredith Jackson
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.
7Subclass 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.
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 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.
…
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.

[2019] AATA 2283

7 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies