Jakka (Migration)

The Administrative Appeals Tribunal considered the applications of a primary applicant and a secondary applicant for a Subclass 500 (Student) visa. The dispute arose from the delegate's decision that the applicant had not provided sufficient evidence of financial capacity to satisfy clause 500.214 of the Migration Regulations 1994. The Tribunal was required to determine whether the applicant had met the financial capacity requirements at the time of the decision.

The legal issues before the Tribunal were whether the applicant had provided sufficient evidence of financial capacity in accordance with clause 500.214(3) of the Regulations and LIN 19/198, and whether the secondary applicant met the criteria under clause 500.311. The Tribunal noted that it was required to make a finding at the time of its decision, meaning current information was necessary. The applicant had been invited to provide documents to establish they met the visa criteria, including evidence of financial capacity, and had complied with this request by submitting supporting documentation.

The Tribunal reasoned that the applicant needed to demonstrate genuine access to sufficient funds to cover course fees, living costs, school costs (if applicable), and travel expenses for both the primary and secondary applicants. This evidence needed to be of a kind specified in the relevant legislative instrument, LIN 19/198. The Tribunal also considered the alternative of providing evidence of the annual income of parents or a spouse/de facto partner, along with genuine access to those funds. The Tribunal found that the secondary applicant, as the spouse of the primary applicant and a member of their family unit, satisfied clause 500.311.

The Tribunal remitted the applications for a Student (Temporary) (Class TU) visa for reconsideration. The direction was that the applicant and the second named applicant respectively meet the criteria for a Subclass 500 (Student) visa, specifically clauses 500.214 and 500.311 of Schedule 2 to the Regulations.