KARIPE (MIGRATION) - [2024] ARTA 125

KARIPE (MIGRATION) [2024] ARTA 125 (8 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Keerthan Karipe
Respondent:  Minister for Home Affairs
Tribunal Number:  2318915

Tribunal:General Member T. Quinn
Place:Melbourne
Date: 8 November 2024
Decision:The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·Clause 500.214 of Schedule 2 to the Regulations.

Statement made on 08 November 2024 at 11:25am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – genuine access to funds – limited course fees outstanding – evidence of Australian bank account – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024, s 106
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 65, 338, 347, 495A
Migration Regulations 1994, Schedule 2, cl 500.214
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 29 August 2023, the applicant applied for a Student visa (the visa) to undertake study in Australia (‘the application’).[1]
[1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the former and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 6 November 2023, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application, not being satisfied that the applicant would have genuine access to funds of the kind required by the Act and Regulations in relation to student visas.[2]
[2]See clause 500.214 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which sets out specific costs and expenses an applicant must demonstrate they have genuine access to funds to meet. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
On 21 November 2023, the applicant applied to this Tribunal for a review of the delegate’s decision.[3]
[3] Pursuant to sections 338(2) and 347 of the Act.
The applicant was represented in relation to the review.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
I have considered all the information and evidence before me and find that a favourable decision may be made on the basis of this material without proceeding to a hearing.[4] The case is remitted for reconsideration.
[4] Pursuant to section 106(3) of the Administrative Review Tribunal Act 2024.
STATUTORY FRAMEWORK
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant. Information in relation to Clause 500.214 is attached to this decision.
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.[5] 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.[6] The Tribunal must also be satisfied that the applicant will have genuine access to the relevant kinds of funds.
[5]Clause 500.214(3).
[6]Clause 500.214(2).
The requirements for evidence of financial capacity for clause 500.214(3) are set out in LIN 19/198, which is attached to this decision (‘the Instrument’).
An applicant must have ‘genuine access’ to the funds they have provided evidence of, and that evidence provided is not just ‘for show’.[7]
[7]Clause 500.214(1).
I recognise that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of the evidence before me at the time of decision, independent of any conclusions reached by the delegate.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a 25-year-old male Indian citizen undertaking a Master of Professional Accounting (‘MPA’).[8]
[8]See confirmation of enrolment in the Tribunal file.
In his application filed with the Department, the applicant did not satisfy the delegate that he had access to sufficient funds to meet the requirements of clause 500.214 of the Regulations.
Has the applicant provided evidence of financial capacity in accordance with the instrument? Are the funds sufficient to meet the applicant’s costs and expenses while the applicant holds the visa?
The applicant must provide evidence that while he holds the proposed visa, he has genuine access to sufficient funds to meet the cost and expenses of the applicant during his intended stay in Australia.
The applicant has now completed a significant portion of his MPA and filed a corroborating transcript from his course provider in this regard, together with a statement of account of 13 September 2024 indicating that the applicant’s has paid AUD10,380 towards his study with no outstanding payments owed at that time.[9]
[9]See Tribunal file.
The applicant’s proposed study is for a duration from September 2024-April 2025.
In circumstances where an applicant’s stay onshore is less than 12 months, there are specific provisions for assessment of his costs and expenses as set out in the Instrument and the applicant is required to provide evidence of sufficient funds to meet his assessed expenses for his remaining period of study.
The costs associated with the applicant’s remaining period of study as evidenced by his confirmation of enrolment for his Automotive Mechanical Diagnosis are as follows:
a.$12,975 in remaining, unpaid tuition fees according to his extended confirmation of enrolment filed with the Tribunal;
b.$9,569 being the cost of living for the remaining days until completion of study as set out in the Instrument; and
c.Travel expenses, being a one-way ticket for the applicant to return to his home country upon completion of his course, equivalent to the sum of $1,000, a figure set down in Departmental policy.
I find that the applicant’s total course fees, living costs and travel costs for the remaining period of his study are $23,544.
The applicant is required to give evidence that he has genuine access to sufficient funds to meet these expenses. This evidence must be in a form that satisfies section 10 of the Instrument. That section specifies a limited range of evidence of financial capacity, namely, evidence of a money deposit with a financial institution, a loan with a financial institution, government loans or a scholarship or financial support.
In support of his application for review, the applicant has provided a document from a large Australian bank account showing that he holds AUD5,027.53 in his own name as of 13 September 2024 and a document from an Indian Financial Institution showing that the applicant holds the sum of INR1,216,990.26 as of 13 September 2024, which is equivalent to AUD21,626.46. The applicant has also provided evidence of funds held and ongoing income of his parents, together with affidavits of support from them. The form of his evidence meets the requirements of section 10 of the Instrument. The amount held also meets the figure required by the Instrument for the applicant’s costs and expenses as set out in paragraphs 18 and 19 above.
Will the applicant have genuine access to the funds?
The applicant holds sufficient funds in his own name, and I consider he has genuine access to these funds but also note the affidavits sworn by his parents on 13 September 2024 stating that they (the applicant’s parents) have sufficient funds to support the applicant’s living and educational expenses in Australia. I am satisfied that the applicant has genuine access to these funds.
Conclusions
Having had regard to the evidence before me, I am satisfied that the applicant has genuine access to funds sufficient to meet his costs and expenses onshore as required by clause 500.214. Accordingly, the applicant meets clause 500.214 of Schedule 2 to the Regulations and the applicant’s application for the visa is remitted to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa: Clause 500.214 of Schedule 2 to the Regulations.
T. Quinn
General Member
Representative for the Applicant: Mr Maheep Singh Virk (MARN: 2117686)
Attachment – Clause 500.214 of Schedule 2 of the Regulations
Genuine Access to Funds
(1)The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).
(2)While the applicant holds the visa, sufficient funds will be available to meet:
a.the costs and expenses of the applicant during the applicant's intended stay in Australia; and
b.the costs and expenses of each member of the applicant's family unit (if any) who will be in Australia.
(3)If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).
Note: For arrangements for the use of a computer program, see section 495A of the Act.
(4)The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).
Attachment – LIN 19/198 – Financial capacity instrument (extract)
6Subclause 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.
7Subclause 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.
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 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.
…
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.