Kaensan (Migration)

Kaensan (Migration) [2020] AATA 1803 (20 February 2020)
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DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Miss Jutharat Kaensan
Mr Chayot Kaensan
CASE NUMBER:  1728980
HOME AFFAIRS REFERENCE(S):          BCC2017/3173926
MEMBER:Mark Bishop
DATE:20 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 20 February 2020 at 2:59pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – financial capacity – genuine access to funds – current evidence of enrolment – secondary visa applicant is offshore – death of Australian partner – beneficiary of partner’s estate – request for Ministerial Intervention referral – strong compassionate circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), rr 1.03, 2.12; Schedule 2 cls 500.111, 500.211, 500.214, 500.311
CASES
Mohammed v MIBP [2017] FCCA 2356
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 3 November 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 1 September 2017. 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 failed to provide adequate evidence of genuine access to funds.
The applicant provided a copy of the decision record to the Tribunal. The date of the decision record was 3 November 2017.
The applicants appeared before the Tribunal on 11 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The secondary applicant did not appear before the Tribunal. The applicants were assisted in relation to the review by counsel as their registered migration agent.
Prior to the commencement of the hearing proper the Tribunal explained in considerable detail the purpose of the review hearing, the process of the review hearing, the role of the interpreter, the role of the MA, the type of evidence needed to be provided to satisfy cl.500.211 and cl.500.214 and advised the applicant to intervene at any time if she was unsure of a question or did not understand a Tribunal question. After some consideration the Tribunal determined to fully use the interpreter during the review hearing, advised the applicant and her solicitor of this decision and did use the interpreter extensively throughout the review hearing. The applicant was represented by counsel and participated in the review hearing from time to time
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 evidence of enrolment in an approved course and Genuine Access to Funds (GAF).
The solicitor for the applicant advised the Tribunal her purpose in representing the applicant at the hearing was to seek a reference to the Minister for Intervention.
The applicant advised the Tribunal she came to Australia approximately 7 years ago to live with her then de facto partner and had maintained a de facto relationship with him until he died sometime around 2017. The applicant advised she had been the major beneficiary in the estate of her late de facto partner and all matters relating to settlement of that estate were now resolved. The applicant provided to the Tribunal generalised detail as to that estate. The applicant advised the Tribunal she had not applied for a partner visa prior to the death of her de facto partner.
After some discussion with the applicants’ solicitor the Tribunal advised it would be preferable to receive written submissions that addressed the Request for Ministerial Intervention. The Tribunal advised the applicants’ solicitor it would accept written submissions that addressed this point up until close of business Monday 17 February 2020. The applicants’ solicitor agreed to provide written submissions within that time frame.
Enrolment (cl.500.211)
Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.
‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.
While the issue before the delegate was whether the applicant was a genuine temporary entrant, the issue before the Tribunal now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa and has evidence of GAF. The Tribunal intends to address each issue separately.
The Tribunal explained this was a determinative issue.
The Tribunal explained the meaning of the word determinative. In evidence to the Tribunal the applicant advised she understood the determinative issue had changed from GAF to enrolment in a course of study and GAF. By determinative the applicant agreed she understood this to mean decisive or definitive or settled. In evidence the applicant advised she understood the meaning of determinative and the explanation provided by the Tribunal. The applicant’s solicitor advised the Tribunal she understood the nature of the issue before the Tribunal had changed and this change in issue was determinative of the review application.
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.
Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.
‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under
At the hearing the applicant advised the Tribunal she was not enrolled in an approved course of study and had not been enrolled in an approved course of study since July 2018. The applicant advised a COE previously provided to the Department (number 91B1B757) (Df: 59) had expired and she did not have a current COE. The MA for the applicant concurred in this evidence.
Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.
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 LIN 19/198, which is attached to this decision.
On 1 September 2017 the applicant advised the Department in writing she did not hold a Confirmation of Enrolment (COE) for any intended course of study in Australia (Df: 19). She advised the Department she held a letter of offer for enrolment in a Certificate IV in Spoken and Written English. A letter of enrolment in a course of study is not a COE and does not satisfy the requirements of cl.500.211 of Schedule 2 to the Migration regulations.
At a later state the applicant provided a COE to the Department in a Certificate 111 in Spoken and Written English. This COE was numbered 91B1B757 and expired on 9 July 2018.
A COE or other form of proof of enrolment functions as a record of a student’s enrolment status in an approved course and as proof of enrolment for the purpose of cl.500.211. Critically it provides enrolment detail (e.g. course commencement and conclusion dates, course particulars, education provider particulars, tuition costs and amounts paid) and course costs of an applicant for a student visa and is evidence of course fees that is an element of financial capacity as outlined in cl.6(2) of LIN 19/198 Financial Capacity Instrument for the purpose of cl.500.214.
On 3 November 2017 the delegate made a finding the applicant failed to provide evidence of genuine access to funds.
The applicant seeks review of that decision before the Tribunal.
On 23 January 2020 the Tribunal wrote to the applicant and invited the applicant to attend a hearing. The Tribunal advised the applicant “…Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English or accompanied by a translation from a qualified translator”.
The Tribunal requested the applicant provide the following documents at least 7 days prior to the hearing:
1.A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.
2.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.
3.Either:
·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.
·Please note: any access to funds information that is from outside of Australia needs to be converted into Australian Dollars (AUD) using the following link: A copy of the conversion needs to be added to any submission with the conversion date.
In addition on 23 January 2020 the Tribunal provided a copy of LIN 19/198 Financial Capacity Instrument to the applicant. This instrument in s.6 (2) outlines the detail an applicant is required to provide to comply with the instrument and hence satisfy cl.500.214 of Schedule 2 to the Migration Regulations. The Tribunal is of the view the applicant was provided with adequate written notice of the type of detail required to be provided to the Tribunal to satisfy LIN 19/198.
The applicant provided a copy of statement in her name from the Commonwealth Bank that showed a credit balance of $134,465 as at 11 January 2020 and a transaction history from 3 January 2020 until 11 January 2020
The applicant did not provide a written submission to the Tribunal. Except as outlined in paragraph 34 above the applicant did not provide any information to the Tribunal. The applicant did not provide any documents or submissions to the Tribunal. The background to this decision upon the part of the applicant not to provide material in addition to that outlined in paragraph 34 above is set out in paragraphs 10 to 12 above.
The applicant did not provide a current COE to the Tribunal. Without a current COE or other proof of enrolment (such as a letter of confirmation from an education provider or a receipt for payment of tuition fees) the Tribunal is unable to calculate evidence of financial capacity as outlined in LIN 19/198.
The applicant did not provide proof of GAF to the Tribunal. There is insufficient evidence before the Tribunal that the applicant satisfies LIN 19/198.
Secondary Applicant
The secondary applicant was born on 8 June 2009. He is a school age dependant of the applicant. He is a member of the family unit of the applicant. The secondary applicant is not a member of the family unit of a person (the applicant) who is the holder of a student visa.
Accordingly the secondary applicant does not meet cl.500.311 of Schedule 2 to the Migration Regulations.
CONCLUSION
On the basis of the above, the Tribunal is not satisfied that the applicant meets cl.500.214(3).
As the Tribunal is not satisfied the applicant will have genuine access to the funds, cl.500.214(1) is not met.
Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.214.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
As outlined in paragraph 10 and 12 above the MA for the applicant advised the Tribunal she wished to make a Request for Ministerial Intervention. The Tribunal requested the applicant provide written submissions that addressed this request. The applicant provided such written submissions to the Tribunal.
REQUEST FOR MINISTERIAL INTERVENTION
S.351(1) of the Act provides that if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
Referral to the Minister by the Tribunal
The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of his or her public interest powers,[1] and nor is there any statutory power for the Tribunal to make a binding recommendation in this regard.
[1] Mohammed v MIBP [2017] FCCA 2356 at [29].
The power under s351(1) may only be exercised by the Minister personally.[2] Further, the Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person (including the Tribunal), or in any other circumstances.
[2] S351(3)
A review tribunal may refer a case to the Department if the member believes the issues involved fall within the unique or exceptional circumstances described in section 4 of the guidelines. The Department will assess the circumstances of the case and may refer the case to me where it meets my guidelines for referral. If the Department assesses that the case does not meet the Ministerial guidelines for referral, the Department will finalise the case according to the guidelines.
Relevant extracts from the Direction
Members should have regard to the ministerial guidelines when considering whether or not a case should be drawn to the attention of the Minister. When a member considers that a case should be brought to the Minister’s attention, the member may refer the case to the Department. The member’s views will be brought to the Minister’s attention by the Department under the guidelines.
The member may refer a case to the Department on the basis that the member considers that there are facts or circumstances warranting further investigation by the Department before referral to the Minister.
Minister’s guidelines on ministerial powers (s351, s417, s501J)
The guidelines list various scenarios which are inappropriate for the Minister to consider and will not be referred to the Minister. Examples of these that are relevant to the review application are outlined immediately hereunder:
The person may be able to apply for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Migration Regulations 1994 (the Regulations)
·Note the applicant would likely have been able to apply for a partner visa prior to her partner’s death. As the applicant’s partner has now deceased, and she did not make an application before he died, she will likely be unable to satisfy the time of application criteria for a partner visa.
The person has left Australia
- The submissions from the applicants and departmental checks confirm that the secondary visa applicant is offshore. Therefore it is inappropriate to consider a ministerial intervention request in relation to the secondary applicant.
Cases which may be referred to the Minister for possible consideration of the use of his/her intervention powers
The Minister will generally only consider the exercise of the public interest powers in cases which exhibit one or more unique or exceptional circumstances. The Minister’s guidelines list circumstances which may be unique or exceptional. The Minister may consider intervening in case where the circumstances do not fall within the unique or exceptional circumstances described if the Minister considers it to be in the public interest.
The facts as relevant to the review application are set out hereunder:
Details of relationship
Partner: Rodney James Langdon
Period of relationship: 4 years up to Mr Langdon’s death on 11 January 2017. During this period the applicant visited the Mr Langdon on various visitor visas and later applied for a student visa.
Status: de facto with plans to marry (prior to Mr Langdon’s death).
Evidence of relationship
-Will of Mr Langdon dated 5 January 2017 which lists applicant listed as beneficiary of 80% of his estate.
-Death certificate of Mr Langdon dated 23 January 2017 which states Mr Langdon died of metastatic oesophageal cancer on 11 January 2017. Also states that he was in a domestic relationship with the applicant.
-Letter from Mr Langdon to DHA (undated) discussing his relationship with “Arawon Cangaraen” and his intention for her to be able to visit him in Australia.
-Letter from solicitors of Mr Langdon’s estate dated 19 May 2017 advising that applicant has been listed as beneficiary of Mr Langdon’s will. Letter estimates that applicant’s benefit from will is $180,000 and transfer of ownership of property valued about $224,000.
-Copies of Clarke & Barwood trust account statement.
Other factors – unfair or unreasonable
Mr Langdon’s wish was for the applicants to remain in Australia.
Applicant’s son is aged 11. Applicant wishes for him to remain in Australia to be closer with Mr Langdon’s family.
The Tribunal considers the following listed circumstances may be relevant to the review application:
1.Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.
The applicant submits that the circumstance of a partner dying prior to lodging a partner visa application is not anticipated by the legislation.
The Migration Regulations provide for an applicant to be granted a partner visa if they would meet other visa requirements except that the sponsoring partner has died.[3] This usually also requires that the applicant has developed close business, cultural or personal ties in Australia.[4] However, this is exception only applies at time of decision; the applicant must still satisfy the relationship criteria at time of application. Therefore as the applicant did not apply for a partner visa before her partner died, she cannot satisfy the criteria for a partner visa.
[3] See for example reg 801.221(5); reg 820.221(2).
[4] See for example reg. 801.221(5)(d); reg.820.221(2)(c).
1. Compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person
2. Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident

The Tribunal has considered all the above material. The Tribunal turns to each of the points 1 to 3 outlined above in paragraph 53.
The applicant came to Australia and has held various visitor visas and made application for a student visa. She lived in a de facto relationship with her partner prior to his passing in January 2017. She has remained in Australia since that time. Her son of eleven years of age has returned to his home country. The applicant did not apply for a partner visa during the period of her de facto relationship. She cannot now satisfy the partner criteria.
The applicant submitted to the Tribunal that the she wishes that her son is able to return and remain in Australia to be close with Mr Langdon’s family. It is entirely natural for a mother to wish for her son to be close to her former partner’s family. Necessarily if the applicants’ son lives in Australia he will not be close to the applicant’s family in Thailand. In either situation the applicant has the option of having her son live or visit Australia for limited periods of time to visit and stay with his Australian family. The applicant did not provide a medical opinion or medical statement from a psychiatrist, psychologist, other medical professionals, or professional counsellor that advised compassionate circumstances resulting in serious, ongoing and irreversible harm and continuing hardship to the applicant or her son.
Neither the applicant nor her son is Australian citizens. There is no evidence before the Tribunal that either the applicant or her son is members of an Australian family unit. The applicant cannot satisfy the criteria relating to “strong compassionate circumstances” as outlined above.
The Tribunal is of the view the circumstances of the review application do not warrant the case being brought to the attention of the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicants a Student (Temporary) (Class TU) visa.
Mark Bishop
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.

[2020] AATA 1803

20 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies