Kaur (Migration)

Kaur (Migration) [2021] AATA 224 (28 January 2021)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Sumandeep Kaur
CASE NUMBER:  1932899
DIBP REFERENCE(S):  BCC2019/4760103
MEMBER:Mark Bishop
DATE OF DECISION:  28 January 2021
DATE CORRIGENDUM
SIGNED:4 February 2021
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:
Incorrect decision date provided in decision record. Incorrect date 25/01/2021, correct date 28/01/2021.

Mark Bishop
Member
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Sumandeep Kaur
CASE NUMBER:  1932899
HOME AFFAIRS REFERENCE(S):          BCC2019/4760103
MEMBER:Mark Bishop
DATE:25 January 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 28 January 2021 at 12:43pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine access to funds – evidence of financial capacity to pay tuition fees and living expenses – bank statements and affidavits provided on review – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.214(3)
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 8 November 2019 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 23 September 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).
The applicant was assisted by her Migration Agent (MA). The applicant appeared before the Tribunal on 25 January 2021 to give evidence and present arguments.
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 Genuine Access to Funds (GAF).
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.
The delegate made a finding the applicant failed to provide adequate evidence of GAF.
An applicant is required to provide current information to the Tribunal to satisfy GAF as set out in cl.500.214.
On 6 January 2021 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:
·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.
·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.
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.
The Tribunal is of the view the applicant was provided with adequate written notice of the need to provide “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” as outlined in paragraph 14 above.
In addition, on 6 January 2021 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 information required to be provided to the Tribunal to satisfy LIN 19/198.
In response the applicant provided the following documents to the Tribunal:
·Written submission that addressed the delegate’s decision, cl.500.214, failure to provide GAF documents to the Department, evidence (snapshot attachment) of funds provided to the Department in September 2019 and current evidence of documentation that addressed GAF;
·Letter of Confirmation of Enrolment dated 26 August 2019 in a Bachelor of Nursing on letter head of Holmesglen showing start date of 3 February 2020 and finish date of 31 December 2022. The letter also included advice of payment received of $13,250 for semester 1 tuition fees in the calendar year 2020;
·Copy of Diploma of Nursing issued 15 May 2019;
·Letter of employment as a junior endorsed enrolled nurse dated 14 January 2021 showing employment from 13 July 2020 on a casual basis by C4U Pty Ltd trading as Caring For You Nursing Agency;
·Statement of Account in name of Hardial Singh at Bank of India dated 25 December 2021 showing a balance of INR 26,211 (at time of decision approximately AUD$465.51). The Tribunal gives this Statement of Account weight;
·Second Statement of Account in name of Hardial Singh at Bank of India dated 25 December 2021 showing a balance of INR 26,211. In evidence the MA for the applicant this second statement had been provided in error;
·Identity documents;
·Weekly payslips in the name of the applicant showing net income for the week ended 23 December 2020 of $873.75, YTD gross income of and YTD net income of $18.013.77;
The applicant did not provide a copy of own her bank statement/s to the Tribunal.
In evidence to the Tribunal the applicant advised she came to Australia in July 2017, completed a Diploma in Nursing, was currently enrolled in a Bachelor of Nursing, would complete the Bachelor of Nursing in December 2022, her tuition fees for 2021 were approximately $26,000 (two semesters x $13,000 per semester). In evidence to the Tribunal the applicant outlined her understanding of the requirements of GAF. In evidence to the Tribunal she itemised each of the requirements as sufficient funds to cover tuition costs and cost of living.
The Tribunal explained that the documents provided to the Tribunal prior to the hearing were not sufficient to provide evidence of GAF. The Tribunal explained the shortcomings in the evidence provided to date. The MA advised the Tribunal that she had in her possession additional documents that could be provided but had not been provided. The Tribunal explained it needed to sight all relevant documentation that went to GAF. The Tribunal explained in some detail it needed to sight the following documents:
·Copy of current bank statement from uncle and father (or other sponsors if relevant) showing current balances. The Tribunal explained that this documentation needed to be current and up to date.
·Copies of Statements of Support or Affidavits of Support from uncle and father (or other sponsors if relevant) that addressed GAF. The Tribunal explained that this documentation needed to be current and up to date.
The MA for the applicant asked for an adjournment of 1 day to provide the documents as requested. Because of the Australia day public holiday the Tribunal gave the applicant until 12 noon Thursday 28 January to provide copies of the requested documents.
After the hearing concluded the MA for the applicant provided the following documents to the Tribunal:
·Copy of a Statement of Account from the State Bank of India in the name of Sukhdev Singh / Harinder Kaur dated 12 January 2021 showing a balance of INR 9,81,496.76 (at time of decision approximately AUD$17,421.57). The Tribunal gives this Statement of Account weight;
·Affidavit dated 21 January 2021 in the name of Hardial Singh (maternal uncle of the applicant) and Mrs Gurjit Kaur (maternal aunty of the applicant) that addressed relevant requirements of GAF. The Tribunal gives this Affidavit weight;
·Affidavit dated 21 January 2021 in the name of Sukhdev Singh and Mrs Harinder Kaur (parents of the applicant) that addressed relevant requirements of GAF. The Tribunal gives this Affidavit weight;
The applicant is currently enrolled in a course of study.
The applicant is required to provide proof of GAF amounting to $47,041 (calculated as cost of living $21,041 and tuition fees of $26,000).
On 28 January 2021 the applicant provided to the Tribunal new and additional material to that outlined above. Details are as follows:
·New affidavits dated 21 January 2021 from her sponsors, (uncle and father) that addressed relevant requirements of GAF;
·Proof of balance in bank accounts as detailed in bank statements from the State Bank of India dated 25 January 2021 in the name of her uncle showing a balance of INR 3021284 (at time of decision approximately AUD$54105);
·Current COE in the name of the applicant in a Bachelor of Nursing;
The applicant is required to provide evidence of GAF amounting to $48,041 (calculated as cost of living $21,041, tuition fees for calendar year 2021 of $26,000 and an airfare of $1,000..
The applicant provided evidence of GAF.
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?
See above.
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.
See above
As the Tribunal is satisfied the applicant will have genuine access to the funds, cl.500.214(1) is met.
Conclusion on cl.500.214
Accordingly, the Tribunal is satisfied that the applicant meets cl.500.214.
DECISION
The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicants meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.214 of Schedule 2 to the Regulations
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.

[2021] AATA 224

28 January 2021

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