Kariyawasam (Migration)

[2020] AATA 1207

Kariyawasam (Migration) [2020] AATA 1207 (26 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Haputhantrige Dasun Nivantha Kariyawasam

CASE NUMBER:  1813419

HOME AFFAIRS REFERENCE(S):          BCC2018/1156513

MEMBER:David Thompson

DATE:26 January 2020

PLACE OF DECISION:  Perth

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 26 January 2020 at 6:13pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – financial capacity – genuine access to funds – funds and loan facilities – decision under review remitted        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 500.214

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 19 April 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 March 2018. 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.

3. 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 (the Regulations) because the applicant did not provide any evidence capable of satisfying those requirements, either at the time or lodging his visa application or afterwards.

4. The applicant appeared before the Tribunal on 22 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father, Mr Haputhantrige Somadasa Kariyawasam, his mother, Mrs Dehiwattage Kanthi Sriyalatha Fernando, and his sister, Ms Haputhanthrige Dilini Tharthsarani Kariyawasam.

5. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 meets the requirements of cl.500.214.

   Genuine access to funds (cl.500.214)

8. 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: cl.500.214(1).

9. In the present case, the Minister has required the applicant to give evidence of financial capacity in accordance with cl.500.214(3).

10. The applicant has provided the Tribunal with a considerable amount of documentary evidence in support of his review application. Not all of that evidence is directly relevant to the issue of whether he meets the requirements of cl.500.214. The documentary evidence that is relevant to that issue is as follows:

    a.copy of the applicant’s current Confirmation of Enrolment (CoE), with respect to his enrolment in a Diploma of Project Management commencing on 27 January 2020 and ending on 26 July 2020;

    b.two recent payslips for the applicant issued by Piv’s Engineering;

    c.copy of the applicant’s employment contract with Piv’s Engineering;

    d.a copy of the applicant’s Commonwealth Bank Netbank Saver Account statement for the period 5 February 2019 to 31 August 2019,

    e.a copy of a letter from the Commonwealth Bank dated 10 January 2020 confirming the balance of the applicant’s Netbank Saver Account as at 9 January 2020;

    f.a copy of the applicant’s ANZ Access Advantage statement for the period 15 October 2019 to 13 December 2019, confirming that the applicant has an overdraft facility;

    g.a copy of the applicant’s Bank of Ceylon account statement dated 31 October 2019;

    h.copies of Commercial Bank of Ceylon fixed deposit receipts and a bank account statement for the applicant’s mother;

    i.a copy of financial statements for the applicant’s father’s business in Sri Lanka, known as Builders Pantheon, for the year ended 31 March 2019;

    j.a copy of a Certificate of Registration for the applicant’s father’s business;

    k.a copy of the applicant’s father’s bank account statement for his Australian dollar foreign currency account maintained with the Bank of Ceylon, showing a balance of AUD7,447.46 as at 28 June 2019;

    l.a copy of the applicant’s father’s National Development Bank account statement for the period 1 December 2019 to 31 December 2019;

    m.a copy of a letter of support dated 19 January 2020 provided by the applicant’s father;

    n.a copy of an EFTPOS receipt for payment of $1,000 to Dynamic Education Group for tuition fees, with an RTO Report stating that Dynamic Education Group Pty Ltd is the legal name of Keystone College;

    o.a copy of the applicant’s ANZ Low Rate credit card statement for the period 17 December 2019 to 16 January 2020, showing $900.04 of credit available;

    p.a copy of a letter dated 13 January 2020 from National Savings Bank of Sri Lanka dated 13 January 2020, confirming the applicant’s mother’s bank balance;

    q.a copy of the applicant’s father’s bank account statement for his Australian dollar foreign currency account maintained with the Bank of Ceylon, showing a balance of AUD7,447.46 as at 31 December 2019;

    r.a copy of a bank statement for the applicant’s Bank of Ceylon account showing the account balance as at 31 December 2019;

    s.a printout showing the balance of the applicant’s Commonwealth Bank Netsaver account as at 22 January 2020;

    t.a printout showing the balance of a separate Commonwealth Bank account maintained by the applicant as at 22 January 2020.

11. The Tribunal has had regard to all of this documentary evidence, as well as the other documentary evidence provided by the applicant, to the contents of the Department’s file in his case, to his oral evidence at hearing, to the oral evidence of the other witnesses who gave evidence at hearing, and to the outline of written submissions provided by his representative, Ms Manera, by letter on 21 January 2020. The Tribunal will discuss this evidence below, as necessary.

    Has the applicant provided evidence of financial capacity in accordance with the instrument?

12. The requirements for evidence of financial capacity for cl.500.214(3) are set out in LIN 19/198 (the Instrument), which is attached to this decision.

13. The applicant has applied for a subclass 500 student visa as a primary applicant, and has no dependents. The provisions of the Instrument that refer to him are, therefore, the provisions of s.6. Of those provisions and on the evidence before the Tribunal, only sub-ss.6(2) and 6(3) could have any possible application.

14. Section 6(2) of the Instrument requires an applicant to provide evidence of financial capacity, in the form specified in s.6(10), that demonstrates that he or she has sufficient funds available to meet his or her living costs and expenses, course fees, and travel expenses, and those of his or her dependents (if any), to a given level. The precise amount required depends on the length of time the visa applicant intends to stay in Australia, the fees charged by the applicant’s course provider for the course, the length of the course, and the applicant’s own travel requirements. Section 6(10) requires that evidence to take the form of evidence of a money deposit with a financial institution, a loan with a financial institution, government loans, or a scholarship or financial support.

15. Section 6(3) of the Instrument, which may apply as an alternative to s.6(2), requires an applicant to provide evidence of financial capacity in the form of official government documentation of personal income issued in the 12 months immediately before the visa application is made demonstrating that the applicant’s parent, spouse or de facto partner has a personal annual income of (as relevant) at least AUD62,222 in the 12 months immediately before the visa application is made.

16. Section 6(2) of the Instrument requires the applicant to given the Minister evidence of financial capacity that satisfies the requirements of subsections (2), (3), (4), (5), or (6). In the applicant’s circumstances, only subsections (2) or (3) could possibly apply. There is no evidence before the Tribunal that could meet the requirements of subsection (3). Therefore, the evidence that is before the Tribunal must be sufficient to allow the applicant to meet the requirements of subsection (2) if he is to succeed in his review application.

17. Section 6(2) of the Instrument requires that an applicant’s evidence of financial capacity is in the form specified in subsection 10, and demonstrates that the applicant has sufficient funds available to meet his travel expenses, living costs and expenses (as calculated according to subsection (2)(b)(ii), and his course fees (minus any amount already paid) as calculated according to subsection 2(b)(iii).

18. As of the date of hearing, the applicant proposes to stay in Australia for a period of 6 months. For the purposes of s.6(2)(a) of the Instrument he must, therefore, demonstrate that he has sufficient funds available to meet living costs and expenses of AUD10,520.50. The duration of the applicant’s period of study will be 6 months. He must, therefore, demonstrate that he has sufficient funds available to him to pay the fees for his entire course, less any amount already paid: s.6(2)(b)(iii)(A) The applicant’s CoE states that his total course fee is AUD4,000, and that he has paid AUD1,000. This is confirmed by the receipt referred to in paragraph 10(n) above. It follows that the applicant must demonstrate that he has sufficient funds available to pay course fees of AUD3,000. The only travel the applicant plans to undertake is his journey home at the end of his course. The Tribunal allows AUD1,000 for that expense. The applicant must, therefore, demonstrate that he has AUD14,520.50 available to him if he is to satisfy cl.500.214(3). Moreover, under s.10 of the Instrument he must do so with evidence of a kind or kinds there prescribed.

19. There is no evidence before the Tribunal of any government loans made to the applicant, or of scholarships or other financial support enjoyed by the applicant. There is, however, evidence that on its face falls within the remaining categories of s.10 of the Instrument, that is, evidence of money deposits with financial institutions and evidence of loans with financial institutions.

20. The applicant has provided documentary evidence that he has a total of AUD4,133.57 on deposit with the Commonwealth Bank of Australia and the ANZ Bank. He has also provided evidence of an overdraft facility with the ANZ Bank, under which he is able to draw down AUD1000. The Tribunal has no doubt that those banks qualify as financial institutions for the purposes of s.10 of the Instrument, and finds that the applicant’s overdraft facility amounts to a loan.

21. The applicant has also provided documentary evidence that he maintains an account in his own name with the Bank of Ceylon (see paragraph 10(r) above). The balance of that account at the date of decision is LKR145,025.04, or AUD1169.61 at the current exchange rate. An online search of the records of the Sri Lankan Registrar of Companies confirms that the Bank of Ceylon is a body corporate. An examination of its website has satisfied the Tribunal that it takes money on deposit and makes advances of money. The Tribunal notes that Sri Lanka has a central bank, the Central Bank of Sri Lanka that regulates the country’s banking system. The Tribunal’s examination of the Central Bank of Sri Lanka’s website indicates that the Sri Lankan banking regulatory regime provides prudential assurance. On these bases, the Tribunal is satisfied that the Bank of Ceylon falls within the definition of the term “financial institution” as used in s.10 of the Instrument, and that the account statement mentioned at paragraph 10(r) above meets the requirements of s.10.

22. There is documentary evidence before the Tribunal, in the form of bank statements and a fixed deposit receipt, that the applicant’s parents hold funds the equivalent of AUD29,032.15 in accounts maintained with various Sri Lankan banks, namely, the Bank of Ceylon, the Commercial Bank of Ceylon, the National Development Bank plc, and the National Savings Bank, The Bank of Ceylon has already been discussed in the preceding paragraph of these reasons. The comments made in that paragraph apply equally to the other banks mentioned. The Tribunal finds that all of these banks fall within the definition of the term “financial institution” as used in s.10 of the Instrument, and that the account statement mentioned at paragraphs 10(h), (k), (i), and (p) above meets the requirements of s.10.

23. The Tribunal finds that funds and loan facilities held in the applicant’s own name represent funds available to him. The applicant’s parents gave evidence by telephone at hearing to the effect that their funds are available to support the applicant during his studies in Australia. The Tribunal accepts that evidence. The Tribunal has also had regard to the document mentioned in paragraph 10(m) above, which supports that oral evidence.

24. The Tribunal finds that the total amount of the funds available to the applicant for the purposes of s.6(2) of the Instrument is AUD35,225.81, considerably more than the amount he is required to have available for the purposes of s.6(2).

25. 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?

26. The applicant was questioned about his actual costs and expenses at hearing. To the extent that he must pay course fees and travel costs, they are dealt with above. His evidence at hearing was that he is living with his sister, and that she is covering his accommodation, utilities, and food costs. The applicant’s sister gave oral evidence at hearing to the same effect.

27. The applicant’s evidence was that his actual living expenses otherwise (transport and mobile telephone charges) amount to only a few hundred dollars per month. The Tribunal has no evidence before it contradicting that statement, and accepts it. The Tribunal notes also the documentary evidence mentioned at paragraphs 10(b) and (c) above. That evidence shows that the applicant has part-time employment in Australia and is capable of earning $26.4423 per hour, and will have work whilst he studies.

28. For these reasons, the Tribunal is satisfied that the applicant meets cl.500.214(2).

    Will the applicant have genuine access to the funds?

29. 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.

30. The Tribunal has found at paragraph 23 of these reasons that the applicant will have access to the funds mentioned above. For the reasons there given, and for the reasons given in these reasons generally, the Tribunal finds that the applicant’s access to funds is genuine

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

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

33. 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

34. 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.

    David Thompson
    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.