Kaur (Migration)

Kaur (Migration) [2019] AATA 1313 (17 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mrs Gagandeep Kaur
Master Navdeep Sing Bath
Master Gundeep Singh
Mr Davinder Singh

CASE NUMBER:  1621122
HOME AFFAIRS REFERENCE(S):           BCC2016/2739437
MEMBER:Mark O'Loughlin
DATE:17 April 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the directions that:
The first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.214 of Schedule 2 to the Regulations.

The second, third and fourth named applicants meet PIC 4021 for the purposes of cl.500.317.
Statement made on 17 April 2019 at 11:26am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – genuine access to funds – copy of a bank statement – living costs and school fees of secondary applicants – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.214, 500.317; Schedule 4, PIC 4021
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 21 November 2016 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 18 August 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visas on the basis that the first named applicant (“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 satisfy the delegate that while she held the visa she would have sufficient funds available to meet her costs and expenses.
The applicant appeared before the Tribunal on Tuesday 9^th April 2019 to give evidence and present arguments.
The applicants were 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, while the applicant holds the visa, sufficient funds will be available to meet her costs and expenses and the costs and expenses of her family who will be in Australia.
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 IMMI 18/010, which is attached to this decision.
The applicant gave evidence that two of the secondary applicants, her sons Gundeep Singh and Navdeep Singh Bath, who are 13 and 12 years of age respectively and therefore are of school age, returned to India to live with their grandparents in January 2017. They returned because they had been subjected to some teasing at school and were unhappy and further because the financial strain of supporting them in Australia was significant.
The applicant said that she wished to include them in the application because it would make it easier for the boys to visit her and her husband in Australia if they had visas.
Although the evidence is that the boys will not return to Australia to live and will not be educated here, the Tribunal advised the applicant that they remain secondary applicants and that the Tribunal’s assessment of the applicants’ financial capacity would include a calculation of their living costs and school fees as though they would be living here given that the applicant could not advise when they may come or how long they will be here for.
The applicant has supplied a Confirmation of Enrolment certificate that shows that at the time of the decision she is enrolled in a Diploma of Nursing that started on 28 March 2019 and is due to finish on 8 October 2020. The cost remaining to be paid to complete that course is $18,200.00. She has prepaid tuition fees of $1.000.00 and non-tuition fees of $1.450.00.
For the purposes of IMMI 18/010 the Tribunal has calculated that the applicant would need to show that, at the time of this decision, she has access to an amount of at least $64,470.00 assuming travel costs of $6,000.00 (being 2 trips for each of the boys and one trip each for the applicant and her husband) and course fees of $12,000.00 which the Tribunal calculates to be the pro-rata cost of the applicant’s course for the 12 months from the time of this decision.
Shortly before the hearing in this matter the applicant provided an apparently genuine copy of a bank statement indicating that she holds an account with Westpac bank which, on the 29^th of March 2019, had a balance of $87,668.74.
The applicant gave evidence that this money was both hers and her husband’s but that the account is in her name alone and that the funds are available to her for living and study costs.
She gave further evidence that when she and her husband first came to Australia they had borrowed about $60,000.00 from her parents but that they had been able to repay that loan.
The Tribunal was also provided with evidence of a joint account that she and her husband held with ANZ bank which, in January 2017, had a balance of $174,932.00.
The applicant told the Tribunal that that money was partly some further savings and partly the proceeds of the sale of land that she and her husband had owned in India.
She said that some of the money had been spent on costs of living and tuition and that the rest had been transferred to the Westpac account.
The Tribunal accepts that the applicant has access to the money in the Westpac account and that at the time of this decision that balance is $87,668.74.
The Tribunal finds that those funds are in the form of a money deposit with a financial institution and therefore satisfy the requirements of S10 of IMMI 18/010.
The Tribunal finds that the applicant has available to her the sum of $87,668.74 which is an amount in excess of the sum of $62,470.00 that the applicant needs to satisfy IMMI 18/010 S (2) (b) and (c).
The Tribunal finds that the applicant satisfies IMMI 18/010 S6 (2).
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?
On the basis that the applicant more than meets cl.500.214(3) in respect of the course in which she is enrolled. There is no evidence of her being enrolled in any other course which means that there are no other relevant costs she will need to meet, the Tribunal is satisfied that she has sufficient funds available to meet costs and expenses while she holds her visa.
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.
The Tribunal accepts the applicant’s evidence that the money in the Westpac bank account is genuinely available to the applicant.
: 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.
The Tribunal has regard to copies of apparently genuine passports on the file and finds that the second, third and fourth named applicants hold current passports and therefore meet PIC 4021 for the purpose of cl.500.317.
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 applications for Student (Temporary) (Class TU) visas for reconsideration, with the directions that:
The first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.214 of Schedule 2 to the Regulations.
The second, third and fourth named applicants meet PIC 4021 for the purposes of cl.500.317.
Mark O'Loughlin
Member

Attachment – IMMI 18/010 – Financial capacity instrument (extract)
6Subclass 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 subsection (2), (3), (4), (5) or (6).
Note: For primary applicant, see section 4 of Part 1 of 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 – AUD20,290 (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 commencing:
(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,
and ending on the final day of the applicant’s final course of study.
(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 - AUD7,100; and
(B)for a dependent child - AUD3,040; 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 - AUD8000 (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 of 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 AUD60,000; or
(ii)if there is a secondary applicant – at least AUD70,000.
(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.
7Subclass 500 (Student) visa – secondary applicants 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 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 AUD70,000.
(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 AUD70,000.
(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.

[2019] AATA 1313

17 April 2019

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

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Statutory Construction

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