JIA (Migration)

[2021] AATA 2528

JIA (Migration) [2021] AATA 2528 (7 July 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr XUGUANG JIA

CASE NUMBER:  1916523

HOME AFFAIRS REFERENCE(S):          BCC2019/1607286

MEMBER:  Peter Newton

DATE:  7 July 2021

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 7 July 2021 at 2:14pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – evidence of financial capacity – course fees and living and travel expenses – wife’s statement of support and certificate of deposit for savings account provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), Schedule 2, cl 500.214(3)

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 3 June 2019 (Department’s Decision) to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (Act).

1. The applicant applied for the visa on 1 April 2019. 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.

1. 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 (Regulations) because the delegate was not satisfied the applicant satisfied the requirements of subclause 500.214(3) and therefore the requirements of clause 500.214. The applicant was assisted at the hearing by an interpreter in the Mandarin and English languages. The applicant was also assisted by his representative (Gina Yuan).

1. The applicant appeared before the Tribunal by telephone on 23 March 2021 and gave evidence and made submissions. The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by telephone having regard to the time that has elapsed since the applicant applied for and was refused the student visa and the need for the applicant to have certainty in relation to his visa status and study rights. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick and the delay to the matter if the hearing was not to be conducted by phone. During the hearing the Tribunal was satisfied that the applicant heard

   and understood the outline given at the commencement of the hearing as to how the hearing would proceed and the questions asked during the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

1. Prior to the hearing, the applicant provided to the Tribunal documents including the Department’ Decision, a statement by Gina Yuan, a personal statement signed by the applicant dated 16 March 2021, a letter from Institute of Intellect Blending dated 9 February 2021 confirming the applicant was enrolled in General English on 16 November 2020 and finished on 5 February 2020, a Personal Certificate of Deposit recording a deposit in a saving account of CNY465,000.00 and documents in Mandarin.

1. At the end of the hearing, pursuant to section 359 of the Act, I orally invited the applicant to provide further information within 14 days. In accordance with that invitation, the applicant provided to the Tribunal further documents including: - a signed funding statement by the applicant’s wife (Jia Peipei) dated 2 April 2021; a Personal Certificate of Deposit from Bank of China Limited dated 9 March 2021; an Overseas Student Confirmation of Enrolment (CoE) for a General English course; and a CoE for a Diploma of Business course.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 the applicant. The issue in the present case is whether the applicant has financial capacity to meet the requirement specified in an instrument under subclause 500.214(4).

Genuine access to funds (cl.500.214)

1. 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.

1. 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?

1. The Department’s Decision records that the instrument under subclause 500.214(4) at the time the application for the student visa was lodged was instrument reference IMMI18/010 and that instrument specifies the applicant was required to show evidence of funds. At the time of this decision, the requirements for evidence of financial capacity for cl.500.214(4) are set out in LIN 19/198 (Instrument), which is attached to this decision.

1. During the hearing, the applicant indicated he is pursuing the application for the purpose of studying a language and management course. He said he was in the process of enrolling in a language and management course and he planned to study in Australia for two years. Since the hearing, the applicant has provided the CoE for the General English course at International Institute Brisbane. The CoE for that course records: - the course start date is 5 April 2021; the course end date is 1 April 2022; the initial pre-paid tuition fee is $1,950 and the total tuition fee is $7,800 (leaving a balance unpaid of $5,850). The applicant also provided the CoE for the Diploma of Business course at the International Institute Brisbane. The CoE for that course records: - the course start date is 2 May 2022; the course end date is 30 April 2023; and the total tuition fee is $6,000 which is unpaid.

1. The Instrument requires the applicant to provide evidence of financial capacity to meet the following expenses:

a.   the applicant’s living costs and expenses for a period of 12 months or more in the amount of $21,041. If the period of intended stay is less than 12 months, the costs is calculated on pro rata basis having regard to the number of days of the intended stay proportionate to 365 days;

b.   the applicant’s outstanding course fees;

c.   travel expenses for all inbound and outbound trips for all visa applicants. If an onshore applicant will travel overseas once during the visa period, 3 trips are need (i.e. outbound trip, inbound trip, and homebound trip.

1. As the applicant is pursuing this applicant for the purpose of undertaking the General English course and the Diploma of Business course, pursuant to the Instrument, the applicant must provide evidence of financial capacity to meet the following expenses:

a.    the applicant’s living costs and expenses for a period of 12 months or more in the amount of $21,041

b.   the applicant’s outstanding course fees in the amount of $11,850

c.   travel costs – at least 1 homebound trip - $1,000

d.   Total funds that need to be shown - $33,891.

1. During the hearing, the applicant indicated he is being sponsored by his wife. The applicant provided to the Tribunal a Personal Certificate of Deposit from the Bank of China dated 9 March 2021 recording that Ms Jia Peipei (the applicant’s wife) holds a savings account with CNY465,000. The current exchange rate is 1AUD = 4.82 CNY. The funds held in the account of Ms Jia Peipei equate to AUD96,473.02.

1. The applicant provided a signed funding statement by Ms Jia Peipei dated 2 April 2021 recording she married the applicant in 2013 and “I would like to sponsor Jia Xuguang for his tuition, living and travelling expenses as well as all costs incurred during his study in Australia.” During the hearing, the applicant gave evidence that he married in 2013 and his wife will provide him with access to funds to meet his tuition fees, living and travel costs and expenses.

1. 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?

1. The above evidence establishes the applicant’s wife holds sufficient funds which will be available to meet the applicant’s costs and expenses in the event a visa is granted for the purpose of undertaking the proposed courses over a two-year period. For these reasons, the Tribunal is satisfied that the applicant meets cl.500.214(2).

Will the applicant have genuine access to the funds?

1. 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.

1. As stated, the above evidence establishes the applicant’s wife holds sufficient funds which will be available to meet the applicant’s costs and expenses in the event a visa is granted for the purpose of undertaking the proposed courses over a two-year period. For these reasons, the Tribunal is satisfied that the applicant meets cl.500.214(2).

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

Conclusion on cl.500.214

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

1. 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.

Peter Newton Member

Attachment – LIN 19/198 – Financial capacity instrument (extract)

6            Subclause 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.

7            Subclause 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.

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 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.

…

10          Evidence 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.

11          Pro 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.