Kaur (Migration)

[2019] AATA 1422

Kaur (Migration) [2019] AATA 1422 (14 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Mandeep Kaur
Mr  Kamaljit Singh

CASE NUMBER:  1716678

HOME AFFAIRS REFERENCE(S):           BCC2017/1956591

MEMBER:Stephen Conwell

DATE:14 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.214 of Schedule 2 to the Regulations.

Statement made on 14 January 2019 at 4:25pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – evidence of financial capacity provided – genuine access to funds for course fees, living and travel costs – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.214, 500.218

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 Immigration and Border Protection on 24 July 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 2 June 2017. 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.

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 failed to provide evidence of genuine access to funds.

4. The Tribunal received a detailed submission from the applicant’s representative. In reaching its decision the Tribunal did not consider a Hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2) of the Act.

5. The applicant was represented in relation to the review by her 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 has genuine access to funds to satisfy 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.

9. 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?

10. 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.

11. The applicant’s representative provided the Tribunal with two submissions dated 13 June and 28 November 2018, as the applicant completed her Masters of Business Administration (MBA) in mid-2018 and immediately enrolled in an MBA (Advanced) scheduled to run between 16 June2018 and 1 September 2019 with outstanding course fees of $6,400.  The submission of 28 November 2018 provided updated calculations in respect of the applicant’s current enrolment.

12. On the basis of the evidence provided the Tribunal calculates the applicant needs to show access to $41,520 being course fees of $11,750, Living Costs of $19,830 and travel costs of $1,500.  The secondary applicants’ Living Costs are $6,940 and his travel expenses are estimated to also be $1,500.

13. The applicant provided evidence of a her husband’s (secondary applicant) bank statement as at 21 November 2018, showing a balance of $43,907.99

14. On the basis of the above, the Tribunal is satisfied that the applicant meets cl.500.214(3).

15. From the evidence provided the Tribunal is satisfied the applicant will have genuine access to the funds meaning that cl.500.214(1) is met.

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

17. 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

18. 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.

    Stephen Conwell
    Member