Kaur (Migration)

Kaur (Migration) [2021] AATA 2155 (30 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Rupinder Kaur
CASE NUMBER:  2001617
HOME AFFAIRS REFERENCE(S):          BCC2019/5739972
MEMBER:Warren Stooke AM
DATE:30 March 2021
PLACE OF DECISION:  Melbourne
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 31 March 2021 at 12:15pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– adequate evidence of genuine access to funds provided – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500,214

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 Home Affairs on 21 January 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 13 November 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.
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 delegate was not satisfied that the applicant had a genuine access to funds to support the payment of education fees, travel and living expenses whilst undertaking studies in Australia.
The applicant appeared before the Tribunal on 17 February 2021 to give evidence and present arguments.
The applicant confirmed to the Tribunal that she had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that she understood that the reason for the refusal to grant the visa was because of an administrative error where information concerning the applicant’s financial capacity to cover living costs and tuition fees and expenses was not attached to the application.
The applicant was assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 whether the applicant has a genuine access to funds to support the payment of education fees, travel and living expenses whilst undertaking studies in Australia.
The applicant provided evidence that she is currently subject to a Bridging Visa A that was granted on 13 November 2019 and has condition 8101, which imposes a work limitation, does not permit travel and permits the applicant to undertake study.
The applicant provided evidence of confirmations of enrolment for the courses that she had either completed or was embarking upon currently and as future studies:
a.Certificate III in Commercial Cookery: 4 Dec 2019 to 3 Dec 2020 (Successfully completed);
b.Certificate IV in Commercial Cookery: 15 Dec 2020 to 27 Apr 2021 (Currently enrolled);
c.Diploma of Hospitality Management: 10 May 2021 to 1 Nov 2021 (Future enrolment).
Further, the applicant provided the Tribunal with financial documentation that identified that the outstanding course fees for a Certificate IV in Commercial Cookery and Diploma of Hospitality Management were $2,500 and $4,500, respectively, which culminated in a total of $7,000 outstanding course fees for courses being undertaken.
The applicant submitted that the $7,000 in tuition fees was not currently due until November 2021 and that the assessed living expenses for one year equate to $21,041 (pro-rata), as per the instrument, would require additional net funds of $15,277.25, plus an estimated $1,500 in travel expenses. On this basis, the Tribunal acknowledges that the total funds required would be $23,777.25.
The applicant provided the Tribunal with evidence that she has a genuine access to funds as follows:.
a.Commonwealth Bank of Australia: Rupinder Kaur balance of Account XXXX 7899 - $15,367.35
b.Term Deposit India: Rupinder Kaur balance of Account [INR 54000] - AUD $959.28
c.India Post Saving Account: Rupinder Kaur balance of Account [INR 90000] - AUD $1,598.41
d.State Bank of India Account: Sukhjit Singh (father) XXXXX 9998-5 [INR 7,13,167.58] - AUD $12,669.83
The evidence before the Tribunal is that Rupinder Kaur has a total of available funds to the value of an amount of AUD $30,594.87. This represents an excess of funds held by the applicant of AUD $6,817.62, after deducting the total cost of living expenses, tuition and travel of $23,777.25.
The applicant provided evidence of an affidavit signed by her father, Sukhjit Singh, on 5 February 2021, declaring: “I will bear the future financial expenses”.
In addition, the applicant provided a declaration from her cousin, Lovepreet Singh, who is an Australian citizen, that he will provide financial support to the applicant. The declaration was signed on 10 February 2021.
Submission of Representative
The Representative for the applicant provided the Tribunal with a statement, whereby it was acknowledged that it was an error that the support for a genuine access to funds was not attached to the original application. The Representative submitted:
“We again submit that please consider the genuineness of the applicants and give them a chance with positive decision. Applicant is a young innocent girl who is going through mental pressure as her future is in dark. Miss Kaur is an innocent party who is suffering. It’s not only Miss Kaur who is going through stress, but also myself going through guilt conscious as the mistake was happened on our end. Miss Kaur proven to be a genuine student, she has successfully completed her certificate III of commercial cookery and now studying Certificate IV.”
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).
Based upon the evidence before the Tribunal through bank accounts held by the applicant in Australia and India, together with declarations of financial support from the applicant’s father, Sukhjit Singh, and cousin, Lovepreet Singh, the Tribunal is satisfied that the applicant has a least, a genuine access to funds of AUD $30,594.87, which exceeds the minimum requirement of $23,777.25, determined by reference to LIN 19/198.
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.
Based upon the evidence before the Tribunal through bank accounts held by the applicant in Australia and India, together with declarations of financial support from the applicant’s father, Sukhjit Singh, and cousin, Lovepreet Singh, the Tribunal is satisfied that the applicant has a least, a genuine access to funds of AUD 30,594.87, which exceeds the minimum requirement of $23,777.25, determined by reference to LIN 19/198.
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?
Based upon the evidence provided to the Tribunal, the Tribunal is satisfied that the applicant has a genuine access to funds to support the studies identified in the Confirmation of Enrolment documentation, whereby the Diploma of Hospitality Management course is due for completion on 1 November 2021.
For these reasons, the Tribunal is satisfied that the applicant meets cl.500.214(2).
Will the applicant have genuine access to the funds?
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.
Overall, the Tribunal is satisfied, on the basis of the evidence submitted to the Tribunal, that the applicant has a genuine access to funds to finance and complete her studies for the term of the currently enrolled courses of study, which would meet the cost of living expenses, tuition fees and travel costs, as required in instrument LIN 19/198.
As the Tribunal is satisfied the applicant will have genuine access to the funds, cl.500.214(1) is met.
Accordingly, the Tribunal is satisfied that the applicant meets cl.500.214.
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
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.
Warren Stooke AM
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.

[2021] AATA 2155

30 March 2021

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